Braddy v. City of Winston-Salem, 201 N.C. 301 (1931)

July 2, 1931 · Supreme Court of North Carolina

201 N.C. 301

G. W. BRADDY v. CITY OF WINSTON-SALEM et al.

(Filed 2 July, 1931.)

Mandamus A b — Mandamus lies only to enforce clear legal right.

Mandamus lies only to enforce a clear legal right, and the writ will be denied when the application therefor fails to show this right on the part of the plaintiff demanding it.

Appeal by plaintiff from Finley, J., at Chambers in Winston-Salem, 1 August, 1930. From Eobsyth.

Application for writ of mandamus to require tbe respondents to issue to tbe plaintiff a building permit to erect a filling station on a lot owned by him in tbe city of Winston-Salem.

From an order denying application for writ of mandamus and dismissing the action, plaintiff appeals, assigning errors.

George TF. Braddy for plaintiff.

Parris & Deal for defendants.

Stacy, C. J.

Plaintiff assails tbe validity of tbe city ordinance which forbids tbe erection of a filling station on bis lot. While tbe matter was pending, and before bearing in tbe Superior Court, another ordinance was adopted which is also pleaded in bar of plaintiff’s right to tbe remedy sought. Without undertaking a minute analysis of these ordinances as applicable to plaintiff’s lot, which would serve no useful purpose as a precedent or otherwise, suffice it to say tbe application for writ of mandamus was properly denied for want of a clear showing of right on tbe part of tbe plaintiff to demand it. Hayes v. Benton, 193 N. C., 379, 137 S. E., 169. Mandamus lies only to enforce a clear legal right. Cody v. Barrett, 200 N. C., 43, 156 S. E., 146; Umstead v. Board of Elections, 192 N. C., 139, 134 S. E., 409; Person v. Doughton, 186 N. C., 723, 120 S. E., 481. In some respects, tbe case of Refining Co. v. McKernan, 179 N. C., 314, 102 S. E., 505, is not unlike tbe one at bar.

Affirmed.