City of Raleigh v. Morand

100 S.E.2d 870 (1957) 247 N.C. 363

CITY OF RALEIGH
v.
W. H. MORAND and wife, Margaret Olibene Morand.

No. 449.

Supreme Court of North Carolina.

December 11, 1957.

Alfonso Lloyd, Charles O'H. Grimes, Raleigh, for defendants appellants.

Paul F. Smith, Raleigh, for plaintiff appellee.

DENNY, Justice.

The appellants took no exceptions to the findings of fact or the conclusions of law entered pursuant thereto in the court below. Hence, no exceptions having been taken to the admission of evidence or to the findings of fact, such findings are presumed to be supported by competent evidence and are binding upon appeal. City of Goldsboro v. Atlantic Coast Line R. Co., 246 N.C. 101, 97 S.E.2d 486; James v. Pretlow, 242 N.C. 102, 86 S.E.2d 759; Beaver v. Crawford Paint Co., 240 N.C. 328, 82 S.E.2d 113; Donnell v. Cox, 240 N.C. 259, 81 S.E.2d 664; Wyatt v. Sharp, 239 N.C. 655, 80 S.E.2d 762. Likewise, since no exceptions were taken to the findings of fact or conclusions of law, the exception to the refusal of the court to grant the appellants' motion for judgment as of nonsuit presents no question for review with respect to the findings of fact or the conclusions of law. City of Goldsboro v. Atlantic Coast Line R. Co., supra. The exception to the signing of the judgment, however, does present these questions: (1) Do the facts found support the conclusions of law and the judgment entered thereon, and (2) does any error appear upon the face of the record? City of Goldsboro v. Atlantic Coast Line R. Co., supra, and cited cases.

It is clear that the City of Raleigh extended the zoning jurisdiction conferred upon it pursuant to the statutes and its charter, as set forth in the court's finding of fact No. 1 hereinabove set out, by Ordinance No. 293, adopted 23 January 1952 and which became effective 15 February 1952, as amended by Ordinance No. 542 which is set out in the record and which became effective 16 December 1955. It likewise appears from the findings of fact that the use of the defendants' land for a trailer park or camp was commenced by the defendants after the adoption and effective date of the ordinance prohibiting such use.

The appellants assign as error the refusal of the court below to grant their motion to dismiss this action on the ground that the plaintiff is not entitled to have the defendants enjoined from violating the provisions of its zoning ordinance. We have held otherwise. City of Raleigh v. Fisher, 232 N.C. 629, 61 S.E.2d 897; City of Fayetteville v. Spur Distributing Co., 216 N.C. 596, 5 S.E.2d 838. In fact, G.S. § 160-179 expressly authorizes the use of the injunctive power of the court to enjoin violations of zoning ordinances. This assignment or error is overruled.

The defendants contend that since the complaint and the findings of fact erroneously refer to Chapter 540, Session Laws of North Carolina, 1949, as Chapter 541, it appears on the face of the record that the zoning ordinance of the City of Raleigh, as amended, is without legal validity. The contention is without merit. It clearly appears from other parts of the record that the ordinance prohibiting trailer camps in residential areas of the City and within one mile thereof in all directions was passed pursuant to the provisions of Chapter 540, Session Laws of North Carolina, 1949. Consequently, the erroneous references will be treated as typographical errors only.

The appellants further contend that their property lies in an area outside the City of Raleigh, not subject to city taxes, peopled by nonresidents of the City of Raleigh, and receiving no benefits from said city. Therefore, they contend that on the face of the plaintiff's complaint the ordinance sought to be enforced is unreasonable and arbitrary and cannot in any way be said to further the general welfare of the City of Raleigh.

In Harrington & Co. v. Renner, 236 N.C. 321, 72 S.E.2d 838, 840, this Court, speaking through Devin, C. J., said:

"Statutes which have been passed authorizing the governing bodies of municipal corporations to enact zoning ordinances prescribing that in certain areas only designated types of buildings may be erected and used have been generally upheld by the courts as an exercise of the police power of the State. Kinney v. Sutton, 230 N.C. 404, 53 S.E.2d 306; In re Appeal of Parker, 214 N.C. 51, 197 S.E. 706; Town of Ahoskie v. Moye, 200 N.C. 11, 156 S.E. 130; Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114, 71 L. Ed. 303.

"By Chapter 250, Laws of 1923, now codified as G.S. § 160-172, et seq., the General Assembly ``For the purpose of promoting health, safety, morals or the general welfare of the community' granted to the legislative bodies of cities and towns power to regulate the use of real property in respect to the character and purpose of buildings to be erected therein, to divide the municipality into zones in accord with a comprehensive plan, and to provide the manner in which such regulations should be established and enforced."

In the case of State v. Rice, 158 N.C. 635, 74 S.E. 582, 39 L.R.A.,N.S., 266, this Court said: "The Legislature has unquestioned authority to confer upon the town authorities jurisdiction for sanitary or police purposes of territory beyond the city limits." Holmes v. City of Fayetteville, 197 N.C. 740, 150 S.E. 624.

It is likewise stated in 37 Am.Jur., Municipal Corporations, section 284, page 918, "The legislature has power to confer on a municipal corporation police jurisdiction over adjoining territory immediately next to and within a specified short distance of the corporate limits."

Also, in 58 Am.Jur., Zoning, section 18, page 950, it is stated: "Zoning laws are enacted in the exercise of the police power, and, where upheld, are upheld as a proper exercise thereof."

In the last cited authority in section 63, page 981, it is declared: "The validity of a zoning statute and ordinance relating to the division of a municipality into zones and the prohibition in particular zones of camping grounds conducted for private gain has been upheld as against the contention that they were arbitrary, unreasonable, and discriminatory." In Yokley's Zoning Laws and Practice, 2nd Ed., Trailers, section 253, page 149, it is said: "The right of a municipality to regulate trailers and trailer camps by placing them in certain zones and by excluding them from other zones is well settled."

The contention that the provisions of the zoning ordinance prohibiting the use of the defendants' property, which lies within an area zoned for residential purposes, for use as a trailer camp, constitute arbitrary, unreasonable, and discriminatory restrictions upon the property of the defendants, is untenable. The ordinance applies alike to all property within the territory affected. Kinney v. Sutton, 230 N.C. 404, 53 S.E.2d 306; Town of Wake Forest v. Medlin, 199 N.C. 83, 154 S.E. 29.

Furthermore, when it is shown that an ordinance in question has been adopted by the governing board of a municipality and that fact is shown, as it has been in this case, there is a presumption in favor of the validity of the ordinance. State v. Baynes, 222 N.C. 425, 23 S.E.2d 344; Durham v. Southern R. Co., 185 N.C. 240, 117 S.E. 17, 35 A.L.R. 1313. Consequently, there is a presumption that the zoning ordinance of the City of Raleigh constitutes a proper exercise of the police power, and the burden was upon the appellants in the court below to show otherwise. Kinney v. Sutton, supra; Suddreth v. City of Charlotte, 223 N.C. 630, 27 S.E.2d 650. The defendants have failed to carry the burden in this respect. Moreover, no error appears upon the face of the record. Cf. State v. Owen, 242 N.C. 525, 88 S.E.2d 832.

We hold that the ordinance under consideration, which prohibits the construction and maintenance of a trailer camp within areas zoned for residential purposes within the City of Raleigh and within one mile of its corporate limits, is a valid exercise of the police power and may be enforced by injunctive relief.

The judgment of the court below is

Affirmed.