City of Elizabeth v. Aydlett ( 1930 )

Civil action to restrain the defendant from completing a gasoline filling or gasoline storage station, and from operating same in violation of a zoning ordinance, adopted pursuant to chapter 250, Public Laws 1923.

From a judgment dissolving the temporary restraining order on the ground that indictment, and not injunction, is the only available remedy, plaintiff appeals, assigning error. Section 8 of chapter 250, Public Laws 1923, provides that in case any building or structure is erected or maintained in violation of any ordinance or regulation adopted in pursuance thereof, the proper authorities of the municipality, in addition to other remedies, may institute any appropriate action or proceeding to restrain or abate such unlawful erection, maintenance, occupancy or use, and to prevent any illegal act in connection therewith.

This differentiates the case from Elizabeth City v. Aydlett,198 N.C. 585, 152 S.E. 681, and the trial court was in error in holding that plaintiff was precluded from testing the matter by injunction. 14 R.C.L., 379.

The validity of the ordinance is not involved on the present appeal. The appropriateness of the remedy selected by plaintiff is the only question presented for decision.

Error.