CONVENT OF SISTERS, ETC. v. City of Winston-Salem

90 S.E.2d 879 (1956)

243 N.C. 316

CONVENT OF The SISTERS OF SAINT JOSEPH OF CHESTNUT HILL, Pennsylvania v. CITY OF WINSTON-SALEM.

No. 380.

Supreme Court of North Carolina.

January 13, 1956.

*884 Deal, Hutchins & Minor, Winston-Salem, for plaintiff-appellant.

Womble, Carlyle, Sandridge & Rice, Winston-Salem, for defendant-appellee.

WINBORNE, Justice.

The parties having agreed upon a statement of facts on which the case was submitted to the trial court, exception to the failure of the court to find other facts is not well taken. Hence exception to the judgment, and to the entry of it, assigned as error on this appeal presents for decision this question: Do the facts to which the parties agreed support the judgment? Culbreth v. Britt Corp., 231 N.C. 76, 56 S.E.2d 15, and cases cited. See also Duke v. Campbell, 233 N.C. 262, 63 S.E.2d 555; In re Hall's Guardianship, 235 N.C. 697, 71 S.E.2d 140, 32 A.L.R.2d 856, and cases cited. Also James v. Pretlow, 242 N.C. 102, 86 S.E.2d 759; Scarboro v. Pilot Life Ins. Co., 242 N.C. 444, 88 S.E.2d 133; Byrd v. Thompson, N.C., 90 S.E.2d 394. The answer is "Yes."

The acceptance of benefits under a statute generally precludes an attack upon it. See 11 Am.Jur. pp. 765 to 767; Cameron v. McDonald, 216 N.C. 712, 6 S.E.2d 497; Wall v. Parrot Silver & Copper Company, 244 U.S. 407, 37 S. Ct. 609, 611, 61 L. Ed. 1229.

In the Wall case the U. S. Supreme Court had this to say: "They cannot claim the benefit of statutes and afterwards assail their validity. There is no sanctity in such a claim of constitutional right as prevents it being waived as any other claim of right may be."

And in 11 Am.Jur. p. 766, the text writer states: "Estoppel to question the constitutionality of laws applies not only to acts of the Legislature, but to ordinances and proceedings of municipal corporations, and may be extended to cases where proceedings of a municipal corporation are questioned on the ground of the unconstitutionality of the statute under which they are had, as well as to cases where they are attacked on other grounds."

*885 The writer continues: "Estoppel is most frequently applied in cases involving constitutional law where persons, in some manner, partake of advantages under statutes. The rule is well settled that one who voluntarily proceeds under a statute and claims benefits thereby conferred will not be heard to question its constitutionality in order to avoid its burdens. Certainly such a person will not be allowed to retain his advantage or keep his consideration and then repudiate the act as unconstitutional. This principle applies also to questioning the rules or actions of state commissions."

Moreover, in Cameron v. McDonald, supra [216 N.C. 712, 6 S.E.2d 499], this Court said: "It is the general rule, subject to certain exceptions, that a defendant may waive a constitutional as well as a statutory provision made for his benefit. * * * And this may be done by express consent, by failure to assert it in apt time, or by conduct inconsistent with a purpose to insist upon it", citing State v. Hartsfield, 188 N.C. 357, 124 S.E. 629.

In the light of these principles the answer finds support in a recital of the agreed facts in logical order. The B. F. Huntley homesite and dwelling were located within an area zoned as Res. A-1 by the zoning ordinance of the city. The zoning ordinance prohibited private schools from all residential zones, except upon "Special Use Permit" granted by the Zoning Board of Adjustment under the provisions of Section 13 of the ordinance. The Catholic Bishop of Raleigh purchased the Huntley premises for use as a church elementary school. He then applied for a special use permit under the provisions of Section 13 of the zoning ordinance of the city. Procedure there prescribed was followed, and a special use permit was issued upon conditions stated. The Bishop, through counsel, accepted the permit on 17 February, 1949. The premises and existing buildings thereon were used as an elementary church school during the period September 1949 through May 1954. The Sisters conducted the school. In 1954, plans having been made to operate a girls high school upon the premises, the Bishop made application on 23 July, 1954, for changes in the conditions of the special use permit. Procedure prescribed by Section 13 of the Zoning Ordinance was complied with, and after public hearing, the Zoning Board of Adjustment, on 9 August, 1954, voted unanimously against changing the conditions of the outstanding special use permit. Then on 3 February, 1955, the Sisters purchased the premises with knowledge of all of the conditions contained in the zoning permit, dated 17 February, 1949, and with "knowledge * * * that the Catholic Bishop, acting for and on behalf of the Catholic Diocese of North Carolina, had assented and agreed to all the conditions contained in said zoning permit."

And in connection with the continued use of the premises for school purposes, the Sisters applied for a building permit on 5 February, 1955. On 16 March, 1955, building permit was refused. The changes and construction proposed will constitute a structural change to the exterior of the building involved, and are not required by the State or City Building Codes relative to schools. The Bishop stated in his affidavit that: "My sole connection with the Sisters of St. Joseph of Chestnut Hill insofar as the land described is concerned is that as Bishop of the Diocese of Raleigh, I am charged by the Church and Canon Law with the function of a general and religious supervisor in the regulation of their activities and schools in this area."

In the light of these facts, it seems clear that the Bishop, by accepting the benefits of the provisions of the zoning ordinance waived any right he might have had to contest the validity of the ordinance. And while the Bishop has conveyed the title to the premises to the Sisters in order that private school work be carried on, permission for which was granted in the Special Use Permit of 17 February, 1949, it appears from the affidavit that he, in his official capacity, is charged by the Church and Canon Law with the function of a general and religious supervisor in the regulation of the activities and schools in the area. It would seem, therefore, that the Bishop *886 has supervisory power over the use to which the premises is to be devoted. And the Sisters took title to the property with full knowledge, and are estopped to challenge the validity of the ordinance under which they are permitted to conduct a private school.

For reasons stated appellant has failed to show error, for which the judgment from which appeal is taken should be disturbed.

Affirmed.

BARNHILL, C. J., took no part in the consideration or decision of this case.