Bryan v. Wilson

130 S.E.2d 68 (1963)

259 N.C. 107

J. N. BRYAN, Jr., Ercell S. Webb and wife, Sarah C. Webb, Gilbert Peel, J. S. Jenkins, Ed Parkenson, Jr., M. K. Blount and wife, Florence T. Blount, and all other citizens and residents of Greenville similarly situated who would join in this proceeding, Protestors, v. J. W. WILSON, Building Inspector of the City of Greenville, the Board of Adjustment of the City of Greenville, Morris Brody and Van C. Fleming, Jr., Respondents.

No. 91.

Supreme Court of North Carolina.

March 20, 1963.

*70 Fred T. Mattox, Albion Dunn, Greenville, for protestor, appellants.

James & Speight, W. H. Watson, and R. B. Lee, Greenville, for respondent, appellees.

SHARP, Justice.

To interpret the zoning ordinance which governs this case we must determine whether the words public buildings in Subsection 4 are an independent term in the series or are ejusdem generis with "schools, institutions of an educational or philanthropic nature." If they are the former, the building permit was properly issued; if the latter, it was not. A Board of Adjustment cannot amend an ordinance. Lee v. Board of Adjustment, 226 N.C. 107, 37 S.E.2d 128, 168 A.L.R. 1.

In a narrow sense a public building is one owned and held by national, state, county, or municipal authorities for public use. In a broad sense it has been defined as a building which may be fairly deemed to promote a public purpose or to serve a public use, and the term does not necessarily imply ownership by a governmental unit or agency. 12 C.J.S. Building p. 385. An acceptable definition appears in a syllabus by the Georgia Court in Shepherd v. State, 16 Ga.App. 248, 85 S.E. 83: "All buildings held, used, or controlled exclusively for public purposes by any department or branch of government, state, county or municipal, are public buildings; and this is true without reference to the ownership of the building or of the realty upon which it is situated."

A post office is a building used by the United States Government for the receipt, handling and delivery of mail and the transaction of other business in connection with the postal service. The postal system is for the benefit of the whole public and a post office is, without any doubt, a public building.

The basic rule for the construction of ordinances is to ascertain and effectuate the intention of the municipal legislative body. This intention must be gleaned primarily from the language of the ordinance. 62 C.J.S. Municipal Corporations § 442f (1) (2). One of the aids in ascertaining the legislative intent is the doctrine of ejusdem generis which this Court applied in Chambers v. Board of Adjustment, 250 N.C. 194, 108 S.E.2d 211, 74 A.L.R.2d 412, cited in appellants' brief. That case interpreted a Winston-Salem ordinance which required, as a condition for the construction of multi-family dwellings, "garage or other satisfactory automobile storage space" on the premises. This Court said: "It is a well-settled rule of construction, applicable to statutes and ordinances, that under the doctrine ejusdem generis, when enumerations by specific words or terms are used, and they are followed by general words or terms, the general shall be held to refer to the same classification as the specific. * * * The term `other automobile storage space,' following `garage,' refers to something in the nature of a garage or of that classification." Indeed, it would be impossible to define "other satisfactory automobile storage space" without referring to the particular word "garage."

The Chambers case provides the perfect example of the application of the rule of ejusdem generis. The rule of ejusdem generis usually finds its application in a case where several classes of persons or things are enumerated, and then the provision for "other" things or persons follows. City of Los Angeles v. Superior Court, 2 Cal. 2d 138, 39 P.2d 401. However, the provision for "other" things does not follow in the ordinance under consideration.

*71 In an effort to ascertain the legislative intent both protestors and respondents have sought the aid of a distinguished grammarian and professor of Englishthe one at East Carolina College; the other at North Carolina State College. After analysing the punctuation and syntax of Section 7, both agreed that there is in the section "incontrovertible syntactical evidence that the subsection (4) is composed of three separate coordinate, and independent elements in a series." From then on, however, we encounter the not unusual disagreement among the experts. One says, "There is no evidence whatsoever that any one member of the series could in any way be construed as an appositive to any other member or any two other members of the series." The other, basing his opinion upon "grounds of sense and style in writing," says, "The term public buildings clearly has the connotation of buildings to be used for educational purposes since the other members of the series concern buildings of an educational nature."

We note, however, that the first two members of the series of uses which Section 4 permits in a residential area, to-wit, schools, institutions of an educational or philanthropic nature, are not restricted by the adjective "public." Schools are both private and public and ordinarily philanthropic institutions connote private endowments and contributions. The third member of the series, public buildings, is a term which has a meaning of its own.

We hold that public buildings as used in the ordinance, is a special term which is not ejusdem generis with the first two members of the series, and that the permit to erect a building at 714 East Tenth Street to be used as a United States Post Office was properly issued.

Affirmed.