Building a filling station on plaintiff's lot would be within 250 feet of a dwelling or residence. Automobiles are here to stay, and are now generally used for business and pleasure, and it is necessary for the convenience of the public that filling stations and garages be established and even in residential sections of cities and towns they are held not to be nuisances per se. Hanes v. Carolina Cadillac Co., 176 N.C. p. 351; Bizzell v. Goldsboro, 192 N.C. 348; Clinton v. Oil Co., 193 N.C. 432. In every civilized country it is well-settled, with rare exceptions, that private property cannot be taken for private purposes and private property can only be taken for public purposes upon the payment of just compensation.
A classification manifestly has no such reasonable relation where it forbids one person to carry on a business on the ground that it is dangerous to the community, and allows another person similarly situated to carry on the same business simply because he happens to be engaged in it at the time of the passage of the ordinance. Schappi Bus Line v. City of Hammond (C.C.A. 7th) 11 F.2d 940; Town of Clinton v. Standard Oil Co., 193 N.C. 432, 137 S.E. 183, 55 A.L.R. 252; Crowley v. West, 52 La. Ann. 527, 27 So. 53, 47 L.R.A. 652, 78 Am. St. Rep. 355; Tugman v. City of Chicago, 78 Ill. 405; In re Bohen, 115 Cal. 372, 47 P. 55, 36 L.R.A. 618; Ex parte Dondero, 19 Cal.App. 66, 124 P. 884; Hudson v. Thorne, 7 Paige (N.Y.) 261. An ordinance providing that it should be unlawful to store gasoline or kerosene in wooden buildings in a city, but exempting from the terms of the ordinance wooden buildings in which they were stored at the time of the passage of the ordinance, would be absurdly discriminatory, but no more so, we think, than the ordinance in question, when it is remembered that the only power to pass it is a charter provision which, for the safety of the public, authorizes that the sale of gasoline be regulated. So far as the public safety is concerned, it can make no possible difference that the business was being carried on at the time of the passage of the ordinance. The line of cases exempting existing businesses from the terms of zoning ordi
Turning now to the merits of plaintiff's constitutional challenges, we recognize the validity of the general rule that an ordinance on its face must be fair and impartial and must not permit unwarranted discrimination. Clinton v. Standard Oil Co., 193 N.C. 432, 137 S.E. 183 (1927); 5 E. McQuillin Municipal Corporations 18.09 (3d Ed. 1969). Furthermore, it is well settled that an ordinance which vests unlimited or unregulated discretion in a municipal officer is void. Bizzell v. Board of Aldermen, 192 N.C. 348, 135 S.E. 50 (1926). Plaintiff alleges that Section 4 of the challenged portion violates the general rule by vesting unlimited discretion in the City Manager to enforce the ordinance.
332 So.2d at 116. In announcing the principle that the prevention of competition is not a proper element of zoning, the Michels court echoed a rule recognized by a number of authorities in other jurisdictions. Mott's Realty Corp. v. Town Plan Zoning Commission of Windsor, 152 Conn. 535, 209 A.2d 179 (1965); Farr v. Zoning Board of Appeals, 139 Conn. 577, 95 A.2d 792 (1953); Benson v. Zoning Board of Appeals, 129 Conn. 280, 284, 27 A.2d 389, 391 (1942); 179 Duncan Ave. Corp. v. Board of Adjustment of Jersey City, 122 N.J.L. 292, 293, 5 A.2d 68 (1939); Lehrer v. Board of Adjustment of City of Newark, 137 N.J.L. 100, 58 A.2d 265 (1948); Town of Clinton v. Standard Oil Co., 193 N.C. 432, 137 S.E. 183 (1927); Board of County Supervisors of Fairfax County v. Davis, 200 Va. 316, 106 S.E.2d 152 (1958); Circle Lounge Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427, 86 N.E.2d 920 (1949); Metzenbaum Zoning (2d Ed.), Ch. X-m-(10). In the instant case, the District Court of Appeal, Fourth District, appeared to deviate from this principle when it explained:
Id. at 612, 14 S.E. at 388. Accord, Bizzell v. Goldsboro, 192 N.C. 348, 135 S.E. 50; Clinton v. Oil Co., 193 N.C. 432, 137 S.E. 183. [4-6] A special exception within the meaning of a zoning ordinance is one which is expressly permitted in a given zone upon proof that certain facts and conditions detailed in the ordinance exist.
The Court in so deciding said: (T)he police power is subject to all the constitutional limitations which protect basic property rights, and therefore must be exercised at all times in subordination to Federal and State constitutional limitations and guarantees. Clinard v. Winston-Salem, 217 N.C. 119, 6 S.E.2d 867; Brewer v. Valk, supra ( 204 N.C. 186); Clinton v. Oil Co., 193 N.C. 432, 137 S.E. 183; S. v. Whitlock, 149 N.C. 542, 63 S.E. 123; S. v. Williams, 146 N.C. 618, 61 S.E. 61. . . .
16A C.J.S. Constitutional Law 496 (1956). (Emphasis added); Clinton v. Oil Co., 193 N.C. 432, 137 S.E. 183; State v. Glidden Co., 228 N.C. 664, 46 S.E.2d 860. Inequalities and classifications, however, do not, per se, render a legislative enactment unconstitutional. Ramsey v. Veterans Commission, 261 N.C. 645, 135 S.E.2d 659; State v. Trantham, 230 N.C. 641, 55 S.E.2d 198; 2 Strong, N.C. Index 2d, Constitutional Law 20 (1967).
Competition was certainly not an actual issue in the Loughborough case, and the decision did not turn on it. The passage quoted, however, hints at the rule recognized by a number of authorities in other jurisdictions that the prevention of competition is not a proper element of zoning. Farr v. Zoning Board of Appeals, 139 Conn. 577, 95 A.2d 792; Benson v. Zoning Board of Appeals, 129 Conn. 280, 284, 27 A.2d 389, 391; 179 Duncan Ave. Corp. v. Board of Adjustment of Jersey City, 122 N.J.L. 292, 293, 5 A.2d 68; Lehrer v. Board of Adjustment of City of Newark, 137 N.J.L. 100, 58 A.2d 265; Town of Clinton v. Standard Oil Co., 193 N.C. 432, 137 S.E. 183; Board of County Supervisors of Fairfax County v. Davis, 200 Va. 316, 106 S.E.2d 152; Circle Lounge Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427, 86 N.E.2d 920; Metzenbaum, Zoning (2d Ed.), Ch. X-m-(10). In appeals from zoning boards, a competitor is usually not regarded as an "aggrieved party."
1. That the police power is subject to all the constitutional limitations which protect basic property rights, and therefore must be exercised at all times in subordination to Federal and State constitutional limitations and guarantees. Clinard v. Winston-Salem, 217 N.C. 119, 6 S.E.2d 867; Brewer v. Valk, supra ( 204 N.C. 186); Clinton v. Oil Co., 193 N.C. 432, 137 S.E. 183; S. v. Whitlock, 149 N.C. 542, 63 S.E. 123; S. v. Williams, 146 N.C. 618, 61 S.E. 61. 2.
So far as the public safety is concerned, it can make no possible difference that the business was being carried on at the time of the passage of the ordinance. Standard Oil Co. of N.J. v. City of Charlottesville, 4 Cir., 42 F.2d 88; Boothby v. City of Westbrook, 138 Me. 117, 23 A.2d 316; Town of Clinton v. Standard Oil Co., 193 N.C. 432, 137 S.E. 183, 55 A.L.R. 252. An ordinance which forbids a person from operating a filling station on his property, while allowing the owner of other similar property to use it for that purpose because the other's property was so used when the ordinance became effective, is unconstitutional in that it unquestionably denies the equal protection of the laws to the person forbidden to use his property for a filling station.