Greene v. City of Winston-Salem

213 S.E.2d 231 (1975) 287 N.C. 66

Harold GREENE et al.
v.
CITY OF WINSTON-SALEM.

No. 15.

Supreme Court of North Carolina.

April 14, 1975.

Womble, Carlyle, Sandridge & Rice by Roddey M. Ligon, Jr., Winston-Salem, for appellant.

Brooks, Pierce, McLendon, Humphrey & Leonard by Hubert Humphrey and William G. McNairy, Greensboro, for appellees.

BRANCH, Justice.

The stipulated facts in this case present the question of whether the Winston-Salem ordinance requiring sprinkler systems in high-rise buildings is a building regulation ordinance subject to the approval of the State Building Code Council or a fire protection ordinance emanating from the police power of the City and therefore not requiring such approval. The answer to this question turns upon our construction of the relevant statutes.

G.S. § 143-138 provides for the establishment of a North Carolina State Building Code. The statute, in relevant part, provides:

"(b) Contents of the Code.—The North Carolina State Building Code, as adopted by the Building Code Council, may include reasonable and suitable classifications of buildings and structures, both as to use and occupancy; general building restrictions as to location, height, and floor areas; rules for the lighting and ventilation of buildings and structures; requirements concerning means of egress from buildings and structures; requirements concerning means of ingress in buildings and structures; regulations governing construction and precautions to be taken during construction; regulations as to permissible materials, loads, and stresses; regulations of chimneys, heating appliances, elevators, and other facilities connected with the buildings and structures; regulations governing plumbing, heating, air conditioning for the purpose of comfort cooling by the lowering of temperature, and electrical systems; and such other reasonable rules and regulations pertaining to the construction of buildings and structures and the installation of particular facilities therein as may be found reasonably necessary for the protection of the occupants of the building or structure, its neighbors, and members of the public at large.

"The Code may contain provisions regulating every type of building or structure, wherever it might be situated in the State.

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"(e) Effect upon Local Building Codes. —The North Carolina State Building Code shall apply throughout the State, from the time of its adoption. However, any political subdivision of the State may adopt a building code or building rules and regulations governing construction within its jurisdiction. The territorial jurisdiction of any municipality or county for this purpose, unless otherwise specified by the General Assembly, shall be as follows: Municipal jurisdiction shall include all areas within the corporate limits of the municipality; county jurisdiction shall include all other areas of the county. No such building code or regulations shall be effective until they have been officially approved by the Building Code Council as providing adequate minimum standards to preserve and protect health and safety, in accordance with the provisions of subsection (c) above. While it remains effective, such approval shall be taken as conclusive evidence that a local code or local regulations supersede the State Building Code in its particular political subdivision. Whenever the Building Code Council adopts an amendment to the State Building Code, it shall consider any previously approved local regulations dealing with the same general matters, and it shall have authority to withdraw its approval of any such local code or regulations unless the local governing body makes such appropriate amendments to that local code or regulations as it may direct. In the absence of approval by the Building Code Council, or in the event that approval is withdrawn, local codes and regulations shall have no force and effect." (Emphasis supplied.)

This Building Code has been ratified and adopted by the State Building Code Council, pursuant to G.S. § 143-138(b), and therefore has the full force and effect of law. In re O'Neal, 243 N.C. 714, 92 S.E.2d 189. Pursuant to this authority, the Code Council, by Chapter 9 of the Code, has prescribed standards for sprinkler systems, including provisions for the types of buildings which shall have automatic sprinklers.

G.S. § 160A-174, the statute which delegates and limits the general ordinance-making powers of cities and towns, provides:

"(a) A city may by ordinance define, prohibit, regulate, or abate acts, omissions, or conditions, detrimental to the health, safety, or welfare of its citizens and the peace and dignity of the city, and may define and abate nuisances.

"(b) A city ordinance shall be consistent with the Constitution and laws of North Carolina and of the United States. An ordinance is not consistent with State or federal law when:

(1) The ordinance infringes a liberty guaranteed to the people by the State or federal Constitution;

(2) The ordinance makes unlawful an act, omission or condition which is expressly made lawful by State or federal law;

(3) The ordinances makes lawful an act, omission, or condition which is expressly made unlawful by State or federal law;

(4) The ordinance purports to regulate a subject that cities are expressly forbidden to regulate by State or federal law;

(5) The ordinance purports to regulate a field for which a State or federal statute clearly shows a legislative intent to provide a complete and integrated regulatory scheme to the exclusion of local regulation.

(6) The elements of an offense defined by a city ordinance are identical to the elements of an offense defined by State or federal law.

The fact that a State or federal law, standing alone, makes a given act, omission, or condition unlawful shall not preclude city ordinances requiring a higher standard of conduct or condition."

It has long been the law of this State that "towns and cities are parcels of the State; their corporate powers are emanations from the State for purposes of convenience, and it could never be allowed that they should contravene the policy of the State, or exercise powers not conferred, much less such as are either expressly or impliedly prohibited." Weith v. Wilmington, 68 N.C. 24. This well-settled doctrine is fully stated and summarized in Asheville v. Herbert, 190 N.C. 732, 130 S.E. 861:

"It is the accepted doctrine in this jurisdiction that the powers of a municipality [are], accurately described in Dillon on Municipal Corporations (5 ed.), sec. 237, as follows: ``It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation—not simply convenient, but indispensable.' Smith v. New Bern, 70 N.C. 14; State v. Webber, 107 N.C. 962, 965, 12 S.E. 598; State v. Eason, 114 N.C. 787, 791, 19 S.E. 88; Love v. Raleigh, 116 N.C. 296, 307, 21 S.E. 503; State v. Higgs, 126 N.C. 1014, 1021, 35 S.E. 473; Elizabeth City v. Banks, 150 N.C. 407, 64 S.E. 189; [further citations omitted].

"All acts beyond the scope of the powers granted to a municipality are void. [Citations omitted.] In construing the extent of the powers of municipalities, the fundamental and universal rule is, that while the construction is to be just, seeking first of all for the legislative intent in order to give it fair effect, yet any fair, reasonable or substantial doubt as to the extent of the power is to be determined in favor of the public and against the municipality. [Citation omitted.] This grows out of the fact that the majority will controls, and that minorities are bound by the acts of majorities, and that the public officers occupy a trust relation in which the inhabitants of the city are cestuis que trustent, and the officers are trustees. . . ."

We note that appellant construes the last sentence of G.S. § 160A-174(b) as a grant of authority which supports the enactment of the ordinance of 18 December. We do not agree. Initially there can be no application of this portion of the statute to the present facts since the State has not made it unlawful to construct this motor inn without the inclusion of a sprinkler system. Further, the words "standing alone," found in this portion of the statute, direct our attention to the other portions of the statute that specify certain instances in which an ordinance is invalid because of inconsistency with State or federal law. The following section of the statute is especially pertinent:

"(b) A city ordinance shall be consistent with the Constitution and laws of North Carolina and of the United States. An ordinance is not consistent with State or federal law when:

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"(5) The ordinance purports to regulate a field for which a State or federal statute clearly shows a legislative intent to provide a complete and integrated regulatory scheme to the exclusion of local regulation."

Almost a century ago, in Town of Washington v. Hammond, 76 N.C. 33, this Court stated the principle governing cases in which there is conflict between municipal ordinances and general State law:

"The true principle is that municipal by-laws and ordinances must be in harmony with the general laws of the State, and whenever they come in conflict with the general laws, the by-laws and ordinances must give way. The question does not arise, in our case, whether the State may not expressly confer upon a municipal corporation the power to pass local laws which shall exclude the general laws of the State on particular and enumerated subjects. By-laws and State laws may stand together, if not inconsistent. . .. [Citation omitted.]"

Accord: Davis v. Charlotte, 242 N.C. 670, 89 S.E.2d 406; State v. Stallings, 189 N.C. 104, 126 S.E. 187; State v. Freshwater, 183 N.C. 762, 111 S.E. 161; State v. Dannenberg, 150 N.C. 799, 63 S.E. 946.

In State v. Williams, 283 N.C. 550, 196 S.E.2d 756, this Court considered the validity of a local ordinance which made it unlawful for a person to possess beer on the public streets of Mount Airy. At that time G.S. § 18A-35 provided that, except as otherwise provided in Chapter 18A of the General Statutes, the purchase, transportation, and possession of malt beverages by individuals eighteen years or older for their own use was permitted without restriction or regulation. In holding the local ordinance invalid, this Court, speaking through Justice Moore, stated:

"The General Assembly clearly intended to pre-empt the regulation of malt beverages in order to prevent local governments from enacting ordinances such as the one in question. . . .

"The ordinance in question is not consistent with the general law in that . . the ordinance purports to regulate a field in which a State statute has provided a complete and integrated regulatory scheme to the exclusion of local regulations. . . ."

Although the majority of cases dealing with a conflict between a municipal ordinance and a state statute have arisen in criminal actions, the same principles apply in civil causes. In Tastee-Freez, Inc. v. Raleigh, 256 N.C. 208, 123 S.E.2d 632, a peddler of ice cream and other dairy products had procured a State license to carry on the business of dispensing these products from a mobile freezer unit along the streets and highways, including the streets of defendant city. G.S. § 105-33(d) provided that the State licenses issued should constitute "a personal privilege to conduct the profession or business named in the State license." The City, by a provision incorporated in its own licensing ordinance, sought to prevent this licensee from peddling his products along the city streets. This Court held that, because the city ordinance purported to prohibit a person from exercising a privilege granted by a State license, the city ordinance was invalid and unenforceable.

A similar situation existed in Staley v. Winston-Salem, 258 N.C. 244, 128 S.E.2d 604. In that case, an applicant for a municipal license to sell wines on his restaurant premises had complied with all of the requirements of the alcoholic beverage control statutes of North Carolina and the regulations of the State Board of Alcoholic Control adopted thereunder, but the municipality had passed an ordinance which prohibited the sale of wine in this particular location. This Court unanimously held that, since the provisions of State law regulating the sale of alcoholic beverages permitted the sale of wine in plaintiff's restaurant, the City "could not set at nought a statewide statute permitting the sale of wine in such restaurants. Such sales are a permitted part of authorized business."

Appellant argues that the enactment of G.S. § 69-29, requiring sprinkler systems in certain buildings, indicates that the General Assembly did not intend to vest in the State Building Code Council sole regulatory authority in this area. We do not think that the Legislature must retain sole authority, or completely delegate to one agency all authority, in order to provide a complete and integrated regulatory scheme which would exclude local regulation. Further, the intent to vest controlling regulatory authority in the Building Code Council appears within the provisions of G.S. § 69-29 in that the Legislature provided that the installation of the sprinkler systems required by statute must ultimately be of such design, condition, and scope "as may be approved by the North Carolina Building Code Council."

The legislative intention to create a complete and integrated regulatory scheme is further evidenced by the language of G.S. § 143-139(b), which delegates to the Commissioner of Insurance the responsibility of administering and enforcing the provisions of the North Carolina Building Code pertaining "to plumbing, electrical systems, general building restrictions and regulations, heating and air conditioning, fire protection and the construction of buildings generally." (Emphasis supplied.) It is also noteworthy that the power delegated to the Commissioner of Insurance is subject to the power of the Building Code Council to adopt the procedural requirements necessary for the enforcement of the provisions of the North Carolina Building Code.

Our contextual reading of the relevant statutes compels the conclusion that the statutes clearly show a legislative intent to provide a complete and integrated regulatory scheme, including regulations as to the installation of sprinkler systems, in all buildings and structures, wherever situate in North Carolina, except as expressly exempted by statute. The preemption of this field is modified by G.S. § 143-138(e) to the extent that any political subdivision of the State may adopt a building code or building rules or regulations which may become effective when officially approved by the North Carolina State Building Code Council. The City would have us interpret G.S. § 160A-174 to empower it to ignore explicit statewide legislative enactments. Such an interpretation would, in effect, permit the City to amend the North Carolina Building Code by the simple expedient of codifying the contested ordinance as a part of its Fire Prevention Code and thereby to evade the clear requirements of G.S. § 143-138(e). This result would elevate nomenclature above substance.

We hold that the challenged ordinance is not consistent with the general law of North Carolina in that it purports to regulate a field in which the General Assembly has provided a complete and integrated regulatory scheme to the exclusion of local regulation. Therefore, the ordinance is invalid and unenforceable.

The judgment of the Superior Court of Forsyth County is

Affirmed.

EXUM, J., took no part in the consideration or decision of this case.