Town of Conover v. Jolly

177 S.E.2d 879 (1970)

277 N.C. 439

TOWN OF CONOVER v. Ruby JOLLY, Foy Jolly, and wife Odessa P. Jolly.

No. 70.

Supreme Court of North Carolina.

December 16, 1970.

*881 Williams, Pannell & Matthews by Martin C. Pannell, Newton, for plaintiff appellant.

Lefler, Gordon & Waddell by Lewis E. Waddell, Jr., Newton, for defendants appellees.

LAKE, Justice.

We do not have before us in this case any question as to the authority of a city or town, by a properly enacted zoning ordinance, to divide its territory into zones and to restrict the use of mobile homes to one or more of such zones. The ordinance before us is not an exercise of the zoning power conferred upon cities and towns of this State by G.S. 160-172 et seq. Under this ordinance there is no land within the town upon which the owner of it may locate a mobile home for his own use, or for the use of a tenant, as a permanent residence. Again, this case does not involve the authority of a city or town to prohibit the establishment of a trailer camp or trailer park within territory subject to its zoning jurisdiction. See Raleigh v. Morand, 247 N.C. 363, 100 S.E.2d 870. We are not here concerned with the validity of an ordinance or regulation requiring the owner or occupant of a mobile home, located within a city or town, to conform to specifications as to construction, size of lot, equipment, connection with water and sewer systems or other sanitary or safety measures.

The narrow question presented by this case is: May a town, with a population of approximately 3,000 persons and containing within its limits residential areas, general business areas, neighborhood trading areas, manufacturing areas and minor farming areas, prohibit by its ordinance the use, anywhere within its limits, of a single mobile home as a permanent residence, the home being constructed, equipped, located and used so as to present no threat to the health or safety of its occupants or of any other person? We hold that the town has no such authority.

The ordinance in question forbids the owner of a well constructed mobile home, completely equipped for safe, sanitary, healthful occupancy, to use it anywhere in the town for the purpose for which it was designed and purchased. Such a prohibition may be justified, if at all, only as an exercise of the police power of the State delegated to the municipality.

A city or town in this State has no inherent police power. It may exercise only such powers as are expressly conferred upon it by the General Assembly or as are necessarily implied from those expressly so conferred. State v. Furio, 267 N.C. 353, 148 S.E.2d 275; State v. Byrd, 259 N.C. 141, 130 S.E.2d 55; G.S. 160-1.

G.S. 160-200(26) confers upon cities and towns the power to prevent and abate nuisances, but a mobile home is not a nuisance per se. As Hall, J., said, dissenting *882 in Vickers v. Township Committee of Gloucester Township, 37 N.J. 232, 181 A.2d 129, "Trailer living is a perfectly respectable, healthy and useful kind of housing, adopted by choice by several million people in this country today." Far from intending to prevent it, the General Assembly of 1969 adopted the Uniform Standards Code for Mobile Homes Act for the purpose of assuring the safe construction of such homes sold in this State.

G.S. 160-200(6) confers upon cities and towns the authority "to define, prohibit, abate, or suppress all things detrimental to the health, morals, comfort, safety, convenience, and welfare of the people, and all nuisances and causes thereof." A mobile home, well constructed and equipped, connected with the public water, sewer and electric systems, cannot be deemed, per se, detrimental to the health, morals, comfort, safety, convenience and welfare of the people of the town without regard to the nature and use of the surrounding properties. We conclude, therefore, that G.S. 160-200(6) does not confer upon the Town of Conover authority to enact § 12-22 of its Code of Ordinances, the ordinance upon which it relies in this action. Our attention has been called to no provision in the charter of the town or to any other legislation which purports to confer such authority upon it.

Since authority to enact the ordinance has not been delegated to the town by the General Assembly, we do not reach the serious question of whether such an ordinance, if authorized by statute, would violate Art. I, § 17, of the Constitution of North Carolina, providing that no person may be deprived of his liberty or property but by the law of the land. State v. Jones, 242 N.C. 563, 89 S.E.2d 129; In Re Parker, 209 N.C. 693, 184 S.E. 532. The town not having been granted the power to enact the ordinance upon which it relies, the injunctive relief which it sought in this action was properly denied.

Affirmed.

MOORE, J., did not participate in the consideration or decision of this case.