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North Carolina v. Jones

Filed: May 4, 1982.

STATE OF NORTH CAROLINA
v.
MACK H. JONES



On defendant's petition for discretionary review, pursuant to G.S. 7A-31, of the decision of the Court of Appeals (Webb, J., with Hedrick and Arnold, JJ., concurring), reported at Branch, Chief Justice.

Branch

Defendant's petition for discretionary review, allowed by this Court on 14 January 1982, presents two questions for review. First, is the ordinance in question unconstitutionally vague, and second, does the ordinance in question violate the "due process" clause of the United States Constitution or the "law of the land" clause of the Constitution of North Carolina because it constitutes an exercise of the police power for aesthetic reasons alone? We will consider these questions in reverse order.

Defendant contends that the ordinance in question violates Article I, § 19 of the Constitution of North Carolina and the Fourteenth Amendment to the United States Constitution. Article I, § 19 of our State Constitution states that:

No person shall be taken, imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land.

The Fourteenth Amendment to the United States Constitution, § 1, provides:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This Court initially considered the question of whether regulation based on aesthetic reasons alone was an unconstitutional exercise of the police powers by the State in requiring the screening from view of certain junkyards in State v. Brown, 250 N.C. 54, 108 S.E.2d 74 (1959). We concluded there that the provisions

of G.S. 14-399 conflicted with the rights guaranteed the citizens of this State by Article I, sections 1 and 17 (presently section 19), of the Constitution of North Carolina, commonly referred to as the "law of the land" clause, and held G.S. 14-399 to be unconstitutional. Brown recognized that while

[w]e are in sympathy with every legitimate effort to make our highways attractive and to keep them clean; even so, we know of no authority that vests our courts with the power to uphold a statute or regulation based purely on aesthetic grounds without any real or substantial relation to the public health, safety or morals, or the general welfare.

Id. at 59, 108 S.E.2d at 78.

One year later the holding in Brown was reaffirmed in Restaurant, Inc. v. Charlotte, 252 N.C. 324, 113 S.E.2d 422 (1960), wherein an injunction was affirmed prohibiting the enforcement of a Charlotte ordinance which prohibited the maintenance of business signs over sidewalks in a designated area of that city. This Court although acknowledging the presumptive validity of legislative acts stated that:

Courts are properly hesitant to interfere with a legislative body when it purports to act under the police power, but the exercise of that power must rest on something more substantial than mere aesthetic considerations. If it appears that the ordinance is arbitrary, discriminatory, and based solely on aesthetic considerations, the court will not hesitate to declare the ordinance invalid.

Id. at 326, 113 S.E.2d at 424.

Later in Horton v. Gulledge, 277 N.C. 353, 177 S.E.2d 885, 43 A.L.R. 3d 905 (1970), Justice Lake reiterated the Brown holding in dictum in reversing an order of demolition of certain property in Greensboro pursuant to a city ordinance [Housing Code § 10-23(b)] requiring demolition of buildings which could not be brought up to existing Code standards for less than 60% of the value of the building. The Horton opinion recognized the United States Supreme Court's view in Berman v. Parker, 348 U.S. 26, 33, 99 L. ...


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