#### VANCE S. HARRINGTON & COMPANY, a Corporation, in Behalf of Itself and Any Other Person, Firm or Corporation Owning Property Within the Area of the HAVELOCK ZONING COMMISSION Who Care to Make Themselves Parties Hereto; (CRAVEN COUNTY and THE BOARD OF COMMISSIONERS OF CRAVEN COUNTY, Interveners), v. JOSEPH N. RENNER and WILLODEAN RENNER.

(Filed 29 October, 1952.)

1. Constitutional Law § 20a—

The owner of property has the right to make any lawful use of it he sees fit subject only to those limitations duly imposed by law.

*3222. Counties § 1—

A county is not a municipal corporation in a strict legal sense but- is an instrumentality of the State by means of which the State performs governmental functions within its territorial limits.

3. Constitutional Law § 8c: Municipal Corporations § 37—

The General Assembly may not delegate to''a zoning commission the power to promulgate zoning regulations within a rural section of a county, since such commission is not a municipal corporation and therefore cannot be delegated the authority to exercise a portion of the State’s police power. Chap. 455, Session Laws 1949; Chap. 757, Session Laws 1951; G.S. 160-172. This result is not affected by the fact that the zoning commission’s regulations are submitted to and approved by the board of county commissioners, since the regulations are nevertheless enacted by the commission and not the county.

4. Public Officers § 1—

Where an office created by the General Assembly imposes duties involving decisions as to property from which an appeal would lie, the office is a public office notwithstanding the absence of substantial compensation, and notwithstanding a legislative declaration that the incumbents should be considered as holding offices as commissioners for a special purpose.

5. Public Officers § 4b—

A statute set up a zoning commission and provided that four of its commissioners should be appointed by the board of commissioners of the county, and that one of its number should be appointed by the commanding-officer of a nearby air base. The commanding officer appointed a naval officer to the commission. *Held:*A naval officer holds office under the United States Government and therefore under the provision of Art. XIV, sec. 7, of the State Constitution, he could not hold the office of zoning commissioner under the statute, and was neither a *de facto*nor a *de jure*commissioner.

6. Pleadings § 20—

The filing of answer does not waive the right to demur on the ground that the complaint fails to state a cause of action.

7. Injunctions § 8—

In an action for permanent injunction, demurrer should be sustained and the action dismissed upon the hearing of the order to show cause when the complaint fails to state facts constituting a cause of action.

Appeal by defendants from *Burney, J.,-27*June, 1952. From Cea ven.

Reversed.

This was a suit to enjoin defendants from erecting a building to be used for commercial purposes in an area zoned for residences under tbe act creating the Cherry Point Marine Corps Air Station Zoning Commission.

The complaint of Harrington & Company, in which the Board of Commissioners of Craven County joined as additional party plaintiff, *323alleged in substance tbat by virtue of Chapter 455, Session Laws 1949, the Cherry Point Marine Corps Air Station Zoning Commission was created with the same powers given the legislative bodies and zoning commissions of cities and towns by Article 14 of Chapter 160 of the General Statutes; that pursuant to the provisions of that act, zoning commissioners appointed in accordance with the act proceeded to divide into districts and zones portions of the rural area described in the act, and prepared a map showing the areas zoned and adopted and promulgated rules and regulations dividing and classifying the area into districts and prescribing the height, character and type of buildings permitted to be erected and used in the respective districts; that the report of the Zoning Commission was approved and adopted by the Board of Commissioners of Craven County.

Plaintiffs further alleged that the Act of 1949 contemplated the inclusion of portions of Carteret County in the area described, but that the supplemental Act, Chapter 757, Session Laws 1951, eliminated the area in Carteret County and changed the name to Plavelock Zoning Commission to be composed of five persons, four appointed by the Board of Commissioners of Graven County, and one named by the Commanding Officer of Cherry Point Marine Corps Air Station; that the 1951 Act contained the provision that the County Commissioners and the Zoning Commission should have the same powers as those given to the legislative bodies and zoning commissions of cities and towns by G.S. 160-172, *et seq.*

It also appeared from the complaint that the Zoning Commission created by the 1949 Act adopted the zoning regulations for violation of which the suit for injunction was instituted, and that at the time only the two members appointed by the Board of Commissioners and the Naval Officer, Commander Albers, appointed by the Commandant of the Cherry Point Air Base, were present and acting. It was admitted that Commander Albers was a resident of Tennessee, and at the time was residing at the Air Base within the territory ceded to the Federal Government.

It was alleged that plaintiff owned numerous lots and houses in the area set apart as a residence district and that defendant owning real property adjoining and subject to the same restriction was erecting a large building to be used in commercial activities in violation of the zoning regulations to the damage and detriment of plaintiff’s property for residential purposes, and that the Chairman of the Zoning Commission would take no action. Both of the Acts referred to were by reference incorporated in the complaint.

The defendants filed answers, and also demurred to both complaints on the ground that the statutes upon which the complaints were based were void for violation of Art. II, sec. 29, of the Constitution of North Carolina; that these Acts do not confer authority on plaintiffs to main*324tain this action; that the attempt to confer upon the Zoning Commission the same powers as those given incorporated cities and towns is ineffective and that the zoning regulations, the basis of plaintiff’s action, were invalid; that the plaintiffs have no right to maintain this action, and it should be dismissed.

The demurrers were overruled, and the restraining order continued to the hearing. The defendants excepted and appealed.

*Laurence A. Stith, W. B. B. Guión, and D. G. McCotter, Jr., for Vance S. Harrington •<& Co., Inc., plaintiff, appellee.*

*R. A. Nunn for interveners, appellees.*

*R. E. Whitehurst and George B. Riddle, Jr., for defendants, appellants.*

DeviN, C. J.

Due to its proximity to the large reservation and air base of the United States Marine Corps at Cherry Point, the theretofore sparsely inhabited rural area adjoining soon became populated by thousands of persons who were drawn there by work within the Air Base, or who, because of relationship to members of the armed forces there stationed, found it convenient to reside in the vicinity, or who came to engage in business and trade. This created a housing situation which unless regulated seemed likely to produce inconvenience and discomfort. The Commanding Officer of the air base with the Board of Commissioners of Craven County undertook to provide the remedy by securing the passage of the Acts of 1949 and 1951 creating a Zoning Commission. The purpose was laudable, but we must examine the methods employed in the light of the Constitution and laws of North Carolina in order to determine whether these measures can he upheld against the attack made thereon by the defendants.

Every person owning property has the right to make any lawful use of it he sees fit, and restrictions sought to he imposed on that right must be carefully examined to prevent arbitrary, capricious or oppressive action under the guise of law.

This case involves consideration of the zoning laws of the State. Statutes which have been passed authorizing the governing bodies of municipal corporations to enact zoning ordinances prescribing that in certain areas only designated types of buildings may be erected and used have been generally upheld by the courts as an exercise of the police power of the State. *Kinney v. Sutton,*230 N.C. 404, 53 S.E. 2d 306; *In re Appeal of Parker,*214 N.C. 51, 197 S.E. 706; *Ahoskie v. Moye,*200 N.C. 11, 156 S.E. 130; *Euclid v. Ambler Realty Co.,*272 U.S. 365.

By Chapter 250, Laws of 1923, now codified as G.S. 160-172, *et seq.,*the General Assembly “for the purpose of promoting health, safety, morals or the general welfare of the community” granted to the legislative *325bodies of cities and towns power to regulate the use of real property in respect to the character and purpose of buildings to be erected therein, to divide the municipality into zones in accord with a comprehensive plan, and to provide the manner in which such regulations should be established and enforced. This statute authorized the appointment by the municipality of a Zoning Commission to recommend the boundaries of the various districts and to recommend appropriate regulations to be enforced therein. It is provided that the Zoning Commission should make preliminary report, hold hearings, and thereafter submit its final report to the legislative body of the city. For the further carrying out of the zoning ordinances the statute prescribes that the legislative body of the municipality may provide for the appointment of a board of adjustment which shall hear and decide appeals from and review orders of administrative officials charged with enforcement of any ordinance adopted pursuant to the statute, and shall hear and decide all matters referred to it or upon which it is required to pass under the ordinance, subject to review by *certiorari.*Appeal may be taken by any person aggrieved or by the officers of the municipality.

It will be noted that the power is conferred upon municipal corporations to enact ordinances dividing the municipality into districts or zones of a planned and comprehensive nature, and to establish regulations or restrictions therein as to the character, style and purpose of buildings. This is an enlargement of the corporate powers of the municipality and is predicated upon proper exercise of police power for the purpose of promoting the general welfare of the community. The Act authorizing cities and towns to enact zoning ordinances recognizes that these measures must find their justification in some aspect of the police power. *Kinney v. Sutton,*230 N.C. 404, 53 S.E. 2d 306; *Lee v. Board of Adjustment,*226 N.C. 107, 37 S.E. 2d 128; *In re Appeal of Parker,*214 N.C. 51, 197 S.E. 706; *Elizabeth City v. Aydlett,*201 N.C. 602, 161 S.E. 78; *Harden v. Raleigh,*192 N.C. 395, 135 S.E. 151. As was said by *Justice Ervin,*speaking for the Court in *Raleigh v. Fisher,*232 N.C. 629, 61 S.E. 2d 897: “In enacting and enforcing zoning regulations, a municipality acts as a governmental agency and exercises the police power of the State (citing cases). The police power is that inherent and plenary power in the State which enables it to govern, and to prohibit things hurtful to the health, morals, safety, and welfare of society.”

In the ease at bar, however, power to enact zoning regulations applicable to the rural area near Cherry Point was not based upon authority given by statute to municipal corporations. The power given to municipalities by G.S. 160-172 was to be exercised by enacting zoning ordinances, and implementing that power by the appointment of a zoning commission to plan and a board of adjustment to supervise. The Act of 1949 *326creates a zoning commission and declares it shall have tbe same power given municipal corporations and provides that appeals from tbe zoning commission may be bad to tbe Board of Commissioners of Craven County, and that tbe Board of Commissioners shall act as a board of adjustment.

Conceding, without deciding, that tbe General Assembly has tbe power under tbe Constitution to empower a County Board of Commissioners to enact ordinances providing for zoning districts in tbe rural areas of tbe county, here tbe Act of 1949 has not done this. Apparently tbe cart is placed before tbe horse. It is tbe Zoning Commission according to tbe complaint which under tbe Act prescribed tbe regulations now sought to be enforced. In *James v. Sutton,*229 N.C. 515, 50 S.E. 2d 300, it was said: “Tbe power to zone is conferred upon tbe governing body of tbe municipality. That power cannot be delegated to tbe board of adjustment.”

While tbe General Assembly may delegate power to a municipal corporation to enact zoning ordinances in tbe exercise of police power of tbe State, 11 A.J. 934-988, it must be remembered that though counties are bodies politic and corporate, created by tbe State for certain public purposes, they are not in strict legal sense municipal corporations as are cities and towns, but are rather instrumentalities of tbe State by means of which tbe State performs governmental functions within its territorial limits. *Martin v. Comrs. of Wake,*208 N.C. 354, 180 S.E. 777; *Jones v. Comrs.,*137 N.C. 579, 50 S.E. 291. Tbe General Assembly has not delegated to tbe Zoning Commission in this case tbe power of eminent domain, *Yarborough v. Park Commission,*196 N.C. 284, 145 S.E. 563, nor does it attempt to exercise that power.

True, in tbe case at bar tbe zoning regulations formulated by tbe statutory commission were submitted to and adopted by tbe Board of County Commissioners of Craven County in November, 1950, but that Board bad not enacted any zoning ordinances. It’s only action was to appoint four of tbe five members of a zoning commission already in existence. Tbe Act provides that appeals from decisions of tbe Zoning Commission should be to tbe Board of Commissioners, and in addition to its appellate functions it was to serve as board of adjustment. In neither capacity was any action taken, and tbe next appearance of tbe County Board was to intervene in this suit in June, 1952. Here no municipal corporation was in existence and none was created by tbe Act, nor can we conclude that it Avas within tbe legislative intent that tbe Commission it created should possess tbe functions of a municipal corporation, or exercise tbe police power of tbe State.

It also appears from the complaint that tbe zoning regulations, for violation of which this suit was instituted, were formulated and promulgated by tbe Zoning Commission Avhen of that five-man body only tbe two *327residents of Craven County and tbe naval officer appointed by the Commandant of the Air Base were present and acting. The naval officer, Commander Albers, a resident of Tennessee, was residing within the area of the Cherry Point Federal Air Station.

It is declared in the Act of 1949, and also in that of 1951, that members of the Zoning Commission should be considered as holding office as commissioners for a special purpose within the meaning of Art. XIV, sec. 7, of the State Constitution. But it would seem that the comprehensive nature of the duties prescribed by the Act of 1949, which involve relations with the public and the exercise of judgment and discretion in matters concerning property rights, should bring the members of this Zoning Commission within the definition of public officers. The office was created by the General Assembly and the duties imposed involve decisions as to property from which an appeal would lie. One who holds a public office is a public office holder. The absence of substantial compensation is immaterial. The following decisions ’ of this' Court support this view. *Harris v. Watson,*201 N.C. 661, 161 S.E. 215; *Groves v. Barden,*169 N.C. 8, 84 S.E. 1042; *Advisory Opinion in re Phillips,*226 N.C. 772, 39 S.E. 2d 217; *Bryan v. Patricio,*124 N.C. 651 (662), 33 S.E. 151; *S. v. Knight,*169 N.C. 333, 85 S.E. 418; *Eliason v. Coleman,*86 N.C. 235; *Clark v. Stanley,*66 N.C. 59; 42 A. J. 880.

Declaring it not a public office does not make it so, or render the incumbent immune from the ordinary requirements of public office holding. *Clark v. Stanley,*66 N.C. 59. However, failure to take an oath of office, while it might subject one exercising the duties of the office to a penalty (G.S. 128-5) would not deprive his acts of the validity given those of *de facto*officers performing the duties of a *de jure*office. *Bryan v. Patrick,*124 N.C. 651, 33 S.E. 151; *Clark v. Stanley,*66 N.C. 59; *Wrenn v. Kure Beach,*235 N.C. 292, 69 S.E. 2d 492. But to hold membership in the Zoning Commission as created by the Act of 1949 to be a public office would affect the right of Commander Albers, for he was at the time holding office under the United States Government, with the result that he would be incapable of performing the duties of a public officer under the State. In' such case he is neither a *de facto*nor a *de jure*officer. *Edwards v. Board of Education,*235 N.C. 345, 70 S.E. 2d 170.

The plaintiffs appellees call attention to the fact that the defendants have answered, and that an answer overrules a demurrer. But this rule is inapplicable when the demurrer is based on the insufficiency of the complaint to state a cause of action. *Goldsboro v. Supply Co.,*200 N.C. 405, 157 S.E. 58; *Rosenbacher v. Martin,*170 N.C. 236, 86 S.E. 785.

It may also be noted that in a suit to restrain violation of a- zoning ordinance, both the individual alleging threatened injury to his property *328and the municipality may be parties plaintiff. *Goldsboro v. Supply Co., supra;*G.S. 160-178.

We conclude that the zoning regulations formulated by the Zoning Commission under authority of Chap. 455, Session Laws 1949, and by which it is sought to restrict the right of the defendants to use their property for a lawful purpose must be held invalid, and that the demurrers to the complaint upon which restraining order was issued should be sustained, and the restraining order dissolved.

It is unnecessary to determine the question debated, whether the Acts of 1949 and 1951 referred to violate Art. II, section 29, of the Constitution.

Reversed.