State v. Walker , 265 N.C. 482 ( 1965 )

144 S.E.2d 419 (1965) 265 N.C. 482

STATE of North Carolina and City of Charlotte
v.
James R. WALKER (No. 42-311).

No. 259.

Supreme Court of North Carolina.

October 20, 1965.

T. W. Bruton, Atty. Gen., James F. Bullock, Asst. Atty. Gen., for the State.

Mitchell & Murphy, Raleigh, Thomas H. Wyche, Charlotte, James R. Walker, Jr., Weldon, for defendant appellant.

HIGGINS, Justice.

The defendant bases his appeal on two assignments of error: (1) The failure of the court to quash the warrant. (2) The failure to direct a verdict of not guilty. Both assignments are grounded on his challenge to the constitutionality of Section 5-4 (c) of the Charlotte Building Code, and G.S. § 14-4 which makes violation of the Code a misdemeanor.

The defendant, in his brief, says: "The facts of this case are simple and not in dispute. * * * All of the repairs to the defendant's dwelling took place after a break-down in negotiations between the City officials and the defendant over the requirements of the Code. * * * (We) could not reach any agreement as to the rights and duties of the Inspection Division under the City Code and the right of the defendant to the use and benefit of his dwelling. * * * The defendant appellant contends and argues on this appeal that the property owner and not the City of Charlotte has a vested property right to repairs in connection with the use and enjoyment of his dwelling."

This case is unusual in that neither the City's ordinance requiring a permit for repairs nor the State law which authorizes them and makes the violation of the ordinance a misdemeanor is challenged on the ground that the requirements are arbitrary, capricious, discriminatory, or invalid for any other reason except the lack of authority on the part of the City and of the Legislature to ordain and to enact them. The General Assembly, by G.S. § 160-182, specifically authorizes any municipality to exercise its police power to repair, close, or demolish buildings if the municipality finds dwellings are unfit for habitation due to dilapidation, defects increasing the hazards of fire * * * rendering such dwellings unsafe or insanitary, detrimental to health, safety or morals. The City ordinance here involved is fully authorized by State law and is a proper exercise of police power.

"Municipal corporations may, in the proper exercise of their police power, require that permits or certificates be obtained as a prerequisite to the erection, alteration, improvement, or use of buildings or other property in a particular manner or in a particular area; and such provisions will generally be upheld if they are reasonable and within the limitations on the exercise of municipal powers generally." 62 C.J.S. Municipal Corporations § 227(3), p. 507.

"An ordinance requiring a permit to alter or repair * * * buildings * * * is regarded as a reasonable exercise of the police power." McQuillin, Municipal Corporations, 3d Ed., Vol. 9, p. 529.

"The purpose of requiring a permit is to enable the municipality to make sure that the proposed building conforms to the pertinent ordinances. Provisions for permits are for the benefit and protection of the municipality, not the property owner." Tremarco Corp. v. Garzio, 55 N.J.Super. 320, 150 A.2d 799, rev'd o. g. 32 N.J. 448, 161 A.2d 241.

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.