Walker v. City of Charlotte , 276 N.C. 166 ( 1970 )

171 S.E.2d 431 (1970) 276 N.C. 166

Reverend James R. WALKER, Jr.
v.
CITY OF CHARLOTTE and William H. Jamison, Superintendent of Building Inspection of the City of Charlotte.

No. 53.

Supreme Court of North Carolina.

January 6, 1970.

James R. Walker, Jr., Weldon, Samuel S. Mitchell, Raleigh, for plaintiff.

W. A. Watts, Charlotte, for defendants.

HIGGINS, Justice.

The plaintiff in this action seeks to have the court declare unconstitutional as applied to him: (1) the provisions of G.S. § 160-151; (2) the Charlotte Building Code, which provides for the inspection of buildings for the purpose of ascertaining whether the standards of safety set up in the Code are being observed and to order correction or removal of structures found to be unsafe; (3) that part of the City Code which authorizes the authorities to correct or remove unsafe buildings or parts thereof in the City which are ascertained to be dangerous to health, safety, lives of the occupants, the general public, or persons passing or living in the vicinity, or dangerous to the security of adjoining property, or especially dangerous to the lives of fire fighters in case of fire.

The plaintiff's first attack on the safety regulations was made by suit in the Superior Court of Mecklenburg County instituted July 23, 1964. From a holding adverse to the plaintiff, he appealed to this Court. The opinion is reported in 262 N.C. 697, 138 S.E.2d 501, affirming the decision of the Superior Court.

Later, a criminal proceeding against Walker was originated by warrant in the Recorder's Court of the City of Charlotte. The warrant charged the unlawful and wilful violation of the City Code by attempting to make repairs without obtaining a permit from the Building Inspector, in violation of the City Code, and made criminal by G.S. § 14-4. At the trial, the defendant moved to quash the warrant and dismiss the prosecution upon the ground the statutes and the Code provisions under which the warrant was drawn violated Article I, Secs. 1, 8, 15 and 34, Constitution of North Carolina and the Fourth and Fourteenth Amendments to the Constitution of the United States.

The Recorder overruled the motion to quash, heard the evidence offered by the prosecution, consisting of the City Code, testimony as to the dilapidated condition of the defendant's residence, the finding it was unfit for habitation, was beyond reasonable repair, and that the defects could not be remedied so as to meet the minimum standards of the Charlotte Housing Code. The Superintendent of Building Inspection, upon the findings, directed the building be demolished or removed. The defendant undertook to do repair work himself without applying for or receiving any permit. The defendant did not testify. The Recorder entered a verdict of guilty. From the judgment, he appealed to the Superior Court of Mecklenburg County.

In the Superior Court the State repeated the evidence offered and the defendant repeated the motions made before the Recorder. The jury returned a verdict of guilty. Judge McLean imposed a sentence of 30 days, suspended on the condition the defendant comply with the City Building and Housing Code and pay costs.

On appeal, this Court, 265 N.C. 482, 144 S.E.2d 419, held:

"It is within the police power of the General Assembly and of a city, when authorized, to establish minimum standards, materials, designs, and construction of buildings for the safety of the occupants, their neighbors, and the public at large. G.S. § 143-138; Drum v. Bisaner, 252 N.C. 305, 113 S.E.2d 560; Lutz Industries v. Dixie Home Stores, 242 N.C. 332, 88 S.E.2d 333. The authority to make and to enforce appropriate safety regulations in the public interest arises under the police power. In case of conflicting interests the public good is and must be paramount.

The Charlotte ordinance and the Legislative enactments involved in this case are not shown to be violative either of the Constitution of North Carolina or of the United States. In the trial and judgment below, we find

No error."

Subsequent to the above decision of this Court, the defendant, James R. Walker, petitioned the District Court of the United States for a writ of habeas corpus by which he challenged his conviction upon the ground the section of the City Code under which he was convicted is unconstitutional and in violation of his vested right to possess, use and maintain his own private property and that any warrant or arrest or verdict or judgment entered against him violates these rights under the Fourteenth Amendment to the Constitution of the United States.

On August 3, 1966, after hearing, the United States District Court for the Western District of North Carolina (Craven, J.), 262 F. Supp. 102, held:

"The ordinances and statutes in question here are neither unreasonable nor arbitrary and, therefore, are not repugnant to the federal Constitution. It is not unconstitutional for a municipality to take upon itself a duty to see that repairs to buildings within its domain will be made in such manner as will prevent fire and structural hazards. This duty it is bound to exercise to protect the safety and health of the general public. To require a permit in order to implement such reasonable supervision is not in violation of any provision of the Constitution of the United States.

Petitioner has failed to show a violation of any of his federal constitutional rights, and, for this reason, his petition will be, and hereby is, dismissed."

The decision of the District Court on Walker's appeal was reviewed by the United States Court of Appeals for the Fourth Circuit, 372 F.2d 129. In a per curiam opinion, that Court held:

"* * * The repair and remodeling work undertaken by Walker was both major and extensive, and well within the reasonable reach of the code. For the reasons stated in the opinion of the District Court, we find no unconstitutional infirmity in the building code as applied in this case. Affirmed."

Walker's petition for certiorari was denied by the Supreme Court of the United States. 388 U.S. 917, 88 S. Ct. 2134, 18 L. Ed. 2d 1360.

As between the citizen and the public, the citizen's private property rights must be subordinated to such reasonable regulation as the over-riding public interest requires. For the purpose of protecting life, health, safety and welfare, the General Assembly has power to promulgate rules, fix minimum standards, prescribe materials and designs for buildings and other structures so long as they are not arbitrary, capricious or unreasonable and so long as they tend to promote health, safety and welfare. In these matters, property rights must yield to the proper exercise of the police power. Strong's N.C. Index, 2d Ed., Vol. 2, Sec. 11, "Police Power", p. 203 et seq.

The plaintiff has stipulated that he is in violation of the inspector's order of March 24, 1964 and intends to remain in violation. Upon the authorities cited, and for the reasons assigned, the judgment entered in the Superior Court of Mecklenburg County is

Affirmed.