State v. . Stowe , 190 N.C. 79 ( 1925 )

CLARKSON, J., dissenting. Criminal prosecution tried upon a warrant charging the defendant with keeping cows in certain territory prohibited by ordinance of the city of Charlotte.

From an adverse verdict and judgment that the defendant pay a fine of $25 and the costs, he appeals. This prosecution was commenced in the recorder's court of the city of Charlotte and tried de novo on appeal to the Superior Court of Mecklenburg County. From the latter court the case is brought here to test the validity of a "cow ordinance" of the city of Charlotte, the pertinent provisions of which are as follows:

"Section 1. It shall be unlawful to keep or maintain any cow or cows on any lot within any pen or stable within the corporate limits of the city of Charlotte within a radius of 50 feet of any dwelling," etc. (The remainder of this section deals with the kind of pen or stable to be provided; its validity is conceded and is not in dispute.)

"Section 2. That it shall be unlawful to keep any cow or cows on any lot or premises within the following limits of the city of Charlotte, to wit: Beginning at a point where the Seaboard Air Line Railroad crosses the Southern Railway near West Eleventh Street and runs along the line of the Southern Railway to the Dowd Road; thence eastwardly from the Dowd Road to Mint Street and thence with a straight line from Mint Street to where the Columbia branch of the Southern Railroad crosses West Park Avenue; thence south with Columbia branch of the Southern Railroad to Tremont Avenue; thence along Tremont Avenue in an eastward direction to Avondale Avenue, continuing a straight line to West Dilworth Road; thence north along Dilworth Road to Rosa Avenue; thence with Rosa Avenue to east Morehead Avenue, near the residence of Lee Folger; thence with a straight line north to the bridge over Sugar Creek on East Fourth Street to Hawthorne Lane; thence north along Hawthorne Lane, continuing a straight line to the Seaboard Air Line Railroad; thence west along the Seaboard Air Line Railroad to the beginning."

The defendant lives in that territory covered by section 2 of the ordinance prohibiting the keeping of any cow or cows within the restricted area, and he contends that this portion of the ordinance is void, first, because it is unreasonable, and, second, because it creates an unlawful discrimination between the citizens living within the boundaries specified in said section and those who live in other parts of the city, but outside of the limits mentioned therein.

It is conceded that the right to pass regulatory ordinances with respect to keeping horses, cattle, sheep, swine, goats, dogs, and other animals in the city of Charlotte is specifically granted both by charter provision (Priv. Laws 1915, ch. 276, sec. 14) and by the general law. The pertinent provisions of C. S., 2787, dealing with the general powers of municipal corporations are as follows:

"6. To supervise, regulate, or suppress, in the interest of public morals, public recreations, amusements and entertainments, and to define, prohibit, abate, or suppress all things detrimental to the health, morals, comfort, safety, convenience, and welfare of the people, and all nuisances and causes thereof.

"7. To pass such ordinances as are expedient for maintaining and promoting the peace, good government, and welfare of the city and the morals and happiness of its citizens, and for the performance of all municipal functions.

"10. To make and enforce local police, sanitary, and other regulations."

Under the above grant of powers, we think the ordinance in question is valid. S. v. Rice, 158 N.C. 635; S. v. Weddington, 188 N.C. 643;Lawrence v. Nissen, 173 N.C. 359; Ex parte Broussard, 74 Tex. Cr., 333, Ann. Cas., 1917 E, 919, and note.

In the exercise of an unquestioned police power much must necessarily be left to the discretion of the municipal authorities, and their acts will not be judicially interfered with, unless they are manifestly unreasonable and oppressive: Dillon's Mun. Corp., sec. 379; McLean v.Kansas, 211 U.S. 539; Dobbins v. Los Angeles, 195 U.S. 223; S. v.Kirkpatrick, 179 N.C. 747; S. v. Shannonhouse, 166 N.C. 241; S. v.Lawing, 164 N.C. 492; S. v. Johnson, 114 N.C. 846.

The fact that the ordinance in question prohibits the keeping of cows within certain defined limits of the city and permits them to be kept under specified restrictions in the remainder of the corporate territory is notper se an unreasonable regulation. It is presumed to be otherwise. Ex parteGlass, 49 Tex. Cr., 87; Soon Hing v. Crowley, 113 U.S. 703; Barbier v.Connolly, 113 U.S. 27; In re Linehan, 13 Pac. (Cal.), 170; S. v. Rice,supra, reported in 39 L.R.A. (N.S.), 266, and note; Darlington v. Ward,48 S.C. 570, reported in 38 L.R.A., 326, and note; 1 R. C. L., 1161.

There is nothing appearing on the present record which would warrant us in declaring the ordinance void for unreasonableness or unlawful discrimination. Lawrence v. Nissen, supra; S. v. Hord, 122 N.C. 1092. The verdict and judgment must be upheld.

No error.