Little Pep Delmonico Restaurant v. City of Charlotte

113 S.E.2d 422 (1960)

252 N.C. 324

LITTLE PEP DELMONICO RESTAURANT, INC., on behalf of itself, and such other citizens and plaintiffs of Mecklenburg County, N. C., as affected by Ordinance No. 446 in City Code of Charlotte, N. C., and listed in Complaint, v. CITY OF CHARLOTTE, a Municipal Corporation.

No. 250.

Supreme Court of North Carolina.

April 6, 1960.

*423 John D. Shaw, Charlotte, for defendant appellant.

Plumides & Plumides, Charlotte, for plaintiff appellees.

RODMAN, Justice.

The question for decision is: Did the court err in granting injunctive relief pending a final determination of the validity of the ordinance, or must plaintiff and other interested parties await criminal prosecution to test its validity? The court found the action was instituted on behalf of 100 merchants in Charlotte who had erected signs in conformity with permits issued by the City as authorized by an ordinance in effect prior to the adoption of the challenged ordinance. It found that to remove and replace these signs would cost in excess of $200,000; hence enforcement of the ordinance, if invalid, would cause plaintiff and other interested parties irreparable damage. It further found there was no evidence for the City that the existing signs "in any way materially affect the health, morals, safety or general welfare of citizens of the City of Charlotte."

In addition to the findings summarized above, the court found:

"9. The Court further finds as a fact that the main and only consideration for the passage of said Ordinance No. 446 was that of improving the appearance of said named streets and was passed for aesthetic values only."

"11. The Court further finds as a fact that said Ordinance No. 446 is arbitrarily and oppressively discriminating in that it exempts from said ordinance persons in the immediate area of the included downtown area from said Ordinance No. 446, and that *424 the character of business and width of the street are the same in said area as that area included in said Ordinance No. 446, and therefore said Ordinance No. 446 contains an unreasonable classification in that it takes a right given to the plaintiffs away from them and allows persons outside the prescribed area, as set forth in said Ordinance No. 446, to continue enjoying said rights."

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. State v. Brown, 250 N.C. 54, 108 S.E.2d 74; In re O'Neal, 243 N.C. 714, 92 S.E.2d 189; State v. Staples, 157 N.C. 637, 73 S.E. 112, 37 L.R.A.,N.S., 696; Barger v. Smith, 156 N.C. 323, 72 S.E. 376; State v. Whitlock, 149 N.C. 542, 63 S.E. 123; 37 Am.Jur. 967-968.

The court heard the parties and on the evidence submitted made its findings. The findings are sufficient to establish apparent invalidity and hence sufficient to warrant temporary injunctive relief. Plaintiff was not required to await criminal prosecution for a violation. Orange Speedway, Inc. v. Clayton, 247 N.C. 528, 101 S.E.2d 406; Lanier v. Town of Warsaw, 226 N.C. 637, 39 S.E.2d 817; Dixie Poster Advertising Co. v. City of Asheville, 189 N.C. 737, 128 S.E. 149; Crawford v. Town of Marion, 154 N.C. 73, 69 S.E. 763, 35 L.R.A.,N.S., 193; Pierce v. Society of the Sisters of the Holy Names, 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070.

In actions of this character we have the power to examine the evidence and make findings at variance with the findings made by the trial court; but when called upon to exercise the power, we do so in conformity with the rule given in Ohio Oil Co. v. Conway, 279 U.S. 813, 49 S. Ct. 256, 73 L. Ed. 972, quoted with approval in Castle v. Threadgill, 203 N.C. 441, 166 S.E. 313: "Where the questions presented by an application for an interlocutory injunction are grave, and the injury to the moving party will be certain and irreparable, if the application be denied and the final decree be in his favor, while if the injunction be granted the injury to the opposing party, even if the final decree be in his favor, will be inconsiderable, or may be adequately indemnified by a bond, the injunction usually will be granted." The burden is on appellant to show error. The presumption is that the findings made by the trial court are correct. Turner Coffee Co. v. Thompson, 248 N.C. 207, 102 S.E.2d 783; Douglas Aircraft Co. v. Local Union, 247 N.C. 620, 101 S.E.2d 800. Upon a careful review of the evidence we find no reason which would justify us in vacating the findings or order made by the trial judge. The judgment is

Affirmed.