Hutchins v. Town of Durham

(467) Both parties appealed from the judgment rendered. Upon offering the required testimony as to character and capacity, the defendant, at the regular time provided in the ordinances of the town for renting (during the last week in April, 1887), rented stall No. 2, in the defendant's market house, at a rental of $13 per month, and there being no further public rentings in pursuance of the ordinance until April, 1894, the plaintiff, though still retaining stall No. 2, added stall No. 3 by purchasing the business of one M. Openheimer, who at the first letting leased and (468) occupied it. Since the plaintiff took possession under the license, in 1887, there has been continuously a provision in the town laws that "such license (as that granted him) may be revoked" forany cause which the board may deem sufficient.

Where parties contract in contemplation of a statute then in force, its provisions are deemed to constitute a part of the agreement, just as though they had been incorporated in it. Koonce v. Russell, 103 N.C. 179; Cooley Const. Lim., p. 285; McCless v. Meekins, 117 N.C. 34; Strickland v.Pennsylvania, 21 L.R.A., 16.

A licensed occupant of a stall in a market house has no such interest in the soil as he acquires by virtue of a contract of lease for a store or dwelling house. He cannot recover possession of it by an action in the nature of ejectment, if wrongfully evicted from it, but, as a mere licensee, can at most maintain an action for damages. Stricklandv. Pennsylvania, supra. When the plaintiff entered, and while remaining as an occupant of the stall, the by-law made his license revocable, at the discretion of the authorities of the town, for any reason they deemed sufficient. That he paid his money for a license held by any such precarious tenure was his own fault, if fault it was. He was under no compulsion to submit to any such terms if he felt averse to doing so. He and all other persons were presumed to know the law and to conduct such business with an eye to its provisions. It is not material that the town had the power to repeal its ordinance, when it had never in fact annulled or altered it in the least particular. Where a legislative committee is authorized to enter into a contract for the public printing, the act empowering them to do so may either simply create them agents of the State to enter into an agreement, in which case they are left subject to any existing law relating to (469) the manner of entering into such contract, or the lawmaking power may define their duties in the statute constituting the agency in such a way as by implication or directly to repeal preexisting laws on the subject. This illustration is used because it is one familiar to those who have observed legislative proceedings. In the same way succeeding boards of commissioners are deemed to act, subject to the provisions of ordinances passed by their predecessors in authority, until they see fit to repeal them directly or to substitute others inconsistent with the older enactments.

It was insisted for the defendant on the argument that by holding over after the time fixed in the ordinance for an annual meeting the defendant became a tenant from year to year. It is true that when land is leased for a year, and the tenant is suffered to hold over without any new contract, the law implies a promise on the part of the lessee to pay the same rent, and on the part of the lessor to agree to the same terms, and the tenancy becomes one from year to year. But no such implication can arise while a law stands upon the statute books of the town declaring in express terms that a meat stall is held under a license revocable at the pleasure and discretion of the licensor, not under a lease, if from the nature of this police power another relation could be created in its exercise in any case except by express contract. Hatch v. Pendergrast, 15 Md. 252. One who occupies a stall under a license granted in pursuance of the provisions of an ordinance defining the rights and duties of the town (such as that under which defendant entered) is not a lessee, but a mere licensee. He acquires no right in the soil, but is an occupant, at the absolute pleasure and discretion of the licensor, 27 Am. and Eng. Corp. Cases, p. 631; Barry v. Kennedy, 11 Abbott Pr. N. S. (N. Y.), 421; 14 Am. and Eng. Enc., 463; Hatch v. Pendergrast, supra;Charleston v. Goldsmith, 2 Spears (S.C.), 428; Strickland v. (470)Pennsylvania, supra; Rose v. Mayor, 31 Am. Rep., 308.

The fact that the town prescribes in its ordinances a day on which there shall be an annual renting of the stalls, confers no right on one who has voluntarily become an occupant of one of them upon the terms set forth in the ordinances. If he and all other occupants were subject to removal at discretion, the town could either advertise and offer all stalls in April or evict all the tenants at any other time and substitute others by a public or private letting in their places.

On 10 July, in pursuance of an order of 3 July, 1894, a notice that the stalls would be offered publicly for rent on 1 August, 1894, was posted at the market house and seen by the plaintiff, who was present also when his own stall was rented, and was notified on 9 August, to vacate on 10 August, 1894. He paid no attention to the notice and persisted in his refusal to remove his property or leave himself when the policeman appeared upon the scene at the appointed hour on that day. He suffered them to remove a heavy safe and to place his fresh beef, after removal, on marble slabs, without assistance and without a request in relation to the matter. He then placed himself upon his block, which it was necessary to move, and thereby forced the policemen to lift the block up, with him on top of it, and carry both out of the way. About the time they reached the place selected for depositing the block the plaintiff fell off and caught "upon his all fours." In no aspect of the evidence is this either an unlawful expulsion or a lawful expulsion, conducted in a manner so unnecessarily violent as to entitle the expelled party to damages, either compensatory or vindictive.

Where a guest in a hotel, a passenger on a railway train or a ticket holder at a theater creates a disturbance, though (471) either has a right under his contract to remain so long as he acts with due regard to the rights of others, the proprietor, conductor or manager or their agents may use the amount of force necessary to expel. S. v. Steele,106 N.C. 766. But markets are necessary to the life of the residents of a municipality, and for that reason it has been held that the right to establish and regulate them was implied in the very creation of such corporations. Having the right to regulate these places for the public good, they would be powerless to carry out that duty if, after the license of an occupant of a stall is revoked or expires, they do not have the same power through their lawful officers to expel him which an innkeeper or a conductor has to protect the guests or passengers, representing the public, who place themselves under his care.

The plaintiff had become a trespasser, not by holding over under any contract which gave him the least interest in the premises, but like one who enters a hotel under an implied license, but forfeits his right to remain by misconduct.

The testimony does not show that the officers used more force than was necessary to eject the plaintiff, and, therefore, even though they acted under the orders of the commissioners, the plaintiff can recover neither exemplary nor punitive damages. The plaintiff had no right to recover in any aspect of the evidence, and it follows that there was error in refusing the prayer of the defendant for instructions to that effect, while there was no error in refusing to tell the jury that the plaintiff could recover punitive or any other kind of damage. There was error in the ruling from which the defendant appealed, (472) for which a new trial must be granted; and there was no error in that excepted to by the plaintiff.

Affirmed in plaintiff's appeal. New trial in defendant's appeal.

Cited: Caldwell v. Wilson, 121 N.C. 469.