State v. Beacon Supply Co., 168 N.C. 101 (1914)

Sept. 30, 1914 · Supreme Court of North Carolina

168 N.C. 101

STATE v. BEACON SUPPLY COMPANY.

(Filed 30 September, 1914.)

Cities and Towns — Health—Ordinance—Statutes—Interpretation—Presumptions.

In construing an ordinance or statute relating to public health it will be assumed tbat tbe lawmaking power intended to remedy an evil and not to restrict unnecessarily tbe use of property or tbe engaging -in any lawful business, and ordinances of tbis character should be strictly construed to tbat end, giving effect, if possible, to every word and phrase. Hence, an ordinance reading, “No person shall keep hides, guano, etc., . . . to tbe annoyance of any citizen or the detriment of tbe public health within 400 feet of the dwelling-house of any citizen of the city,” does not make the mere keeping of the commodities named within the distance specified a violation thereof, unless it is shown that the act complained of was to the “annoyance” of a citizen “or a detriment to the public health.”

Appeal by defendants from Connor, J., at May Term, 1914, of VaNCE.

Tbe defendants were prosecuted in tbe recorder’s court of Vance County on a warrant charging tbe violation of a town ordinance, and from a judgment rendered on an appeal to tbe Superior Court appealed to tbis Court.

Tbe ordinance declares, in part, tbat “No person shall keep bides, dried or green, filthy rags, bones, or guano, or anything else tbat may be adjudged a nuisance, to tbe annoyance of any citizen or tbe detriment of tbe public health, within 400 feet of tbe dwelling-house of any citizen of tbe city.”

On tbe evidence, tbe court ruled and charged tbe jury tbat, it being proved and admitted tbat the ordinance in question bad been enacted by tbe city council, and tbat after its enactment defendants kept commercial fertilizers in tbe city within 400 feet of the residence of a citizen, they should find tbe defendants guilty, and tbat the statement in tbe ordinance of “annoyance of a citizen and detriment to the public health” bad no application to this ease, and defendant excepted.

Attorney-General T. W. Biclcett and Assistant Attorney-General T. H. Calvert, and J. C. Kittrell for the State.

T. T. lliclts and T. M. Pittman for defendants.

AlleN, J.

In tbe construction of ordinances and statutes effect must be given, if possible, to every word and phrase (38 Cyc., 1128) ; it must be assumed tbat tbe lawmaking power intended to remedy an evil, and not to restrict unnecessarily tbe use of property or tbe engaging in any lawful business; and statutes and ordinances restricting tbe use of property are strictly construed, and an intent to impose burdens on tbe citizens further than the general welfare demands will never be presumed. Nance v. R. R., 149 N. C., 375.

“All statutory restrictions of the use of property are imposed upon the theory that they are necessary for the safety, health, or comfort of the public; but a limitation which is unnecessary and unreasonable cannot be enforced.” S. v. Whitlock, 149 N. C., 543.

Applying- these principles to the ordinance before us, we are of opinion that his Honor was in error in holding that the defendants are guilty if they kept guano in Henderson within 400 feet of a dwelling or business house, although it annoyed no citizen and was not detrimental to health, and that the words “to annoyance of any citizen or the detriment of the public.health” have no application in this case.

The language quoted is not ambiguous, and it must be presumed that it was intended for- it to have some legal effect.

If referred to the clause immediately preceding, “or anything else that may be adjudged a nuisance,” it is meaningless, because anything sufficiently harmful to be adjudged a nuisance necessarily implies that it is an annoyance to at least one citizen or is injurious to health; and if it should be held that it does not refer to hides, 'guano, and bones, an arbitrary restriction is imposed upon the use and ownership of a well recognized and.useful article of trade and commerce.

This construction would convict the aldermen of Henderson of enacting an ordinance regulating the use of property when unnecessary to promote the coinfort or health of the citizens and of placing a burden upon its use and ownership, a conclusion which would render the ordinance invalid, and which ought not to be adopted unless the language imperatively demands it.

It seems to us that the natural and reasonable construction is that the sentence, “to the annoyance of any citizen or the detriment of public health,” qualifies the verb “keep,” and that it is the keeping to the annoyance of the citizens, etc., of hides, bones,, and guano, or anything else that may be adjudged a nuisance that is condemned.

The validity of that part of the ordinance referring to anything else that may be adjudged a nuisance is not before us.

A new trial is ordered for the error pointed out.

_ New trial.