dissenting: When an ordinance is subject to two or more interpretations, one of which involves tbe destruction of private property without compensation and tbe other of which involves merely tbe clarification of an ordinance within tbe ordinance powers, is tbe Court justified in accepting tbe former view and rejecting tbe latter? In tbe instant case tbe majority opinion, in interpreting an ambiguous ordinance, accepts tbe view tbat this ordinance prohibits, within tbe residence area of tbe city, any fence which either exceeds five feet in height or is more than 60% solid; further, tbe majority view approves such an interpretation of tbe ordinance as a valid exercise of tbe police powers of a municipality. In accordance with tbe view of tbe majority tbe judgment in tbe instant case orders tbe destruction of tbe upper portion of tbe wall constructed by petitioner on bis property. With this result I cannot concur. In my opinion such an interpretation of tbe ordinance involves an unreasonable invasion of tbe traditional and accepted rights of property owners. Furthermore, I think tbe ordinance in question is subject to an interpretation which not only embraces a valid exercise of tbe police power but likewise will permit tbe petitioner’s wall to be constructed in such a way as to accomplish, in part at least, tbe purpose of tbe present wall.
Zoning regulations are predicated upon tbe exercise of granted police powers. Tbe valid exercise of these powers must always be grounded in necessity, and tbat necessity must be in tbe interest of tbe public safety, health, morals, or general welfare. See Munn v. Illinois, 94 U. S., 113; Nectow v. Cambridge, 277 U. S., 183. Granting tbat reason*59able zoning regulations are permissible, under the express and implied powers delegated to municipalities, the question here is merely whether an ordinance subject to several interpretations shall be upheld under a view which safeguards the long-established and well-recognized rights of ownership or shall be approved as to an interpretation which carries with it the destruction of private property by court order.
The topography of petitioner’s corner lot is somewhat unusual. The lot is highest near the center; at the highest point on one street it is 21.6 feet above the street level and on the other street, at its highest point, it is 15.1 feet above the street level. Accordingly, the lot slopes from the residence toward the streets, but even at the street lines a retaining wall is necessary due to the natural elevation of the lot at its outer edges. The wall objected to forms a court at the rear of petitioner’s home, the wall itself extending along an alley to the rear of the lot and for a short distance along the side street on which petitioner’s lot abuts. As the level of the top of the wall around the court is constant, due to the slope of the lot the height of the wall at different points varies from 6.5 feet to 16.9 feet. The portion along the side street varies from 14.3 feet to 16.9 feet in height above the sidewalk level, the residence being located about twenty feet above the level of one street and ten feet above the level of the other.
Petitioner is a physician, who is necessarily often away from home at night, thus leaving his wife alone in the house. Accordingly, he consulted an architect and requested that a wall be planned in the interest of privacy and safety but in keeping with the style of the house, which the photographs filed in the case show to be a mixed Spanish and Italian type of architecture. The wall as built was declared by architectural experts to be well adapted to the house and the lot. One landscape architect declared that it “improved the appearance of the property and the neighborhood,” and another declared that when it has been stuccoed and covered with vines it will be “one of the most attractive gardens in Greensboro.” The city’s superintendent of parks stated that it was in no way objectionable from an esthetic point of view, and a number of petitioner’s neighbors testified to the same effect. Both the city and county health officers testified that the wall does not interfere with the light or ventilation of petitioner’s or of neighbor’s properties, and architects and contractors joined them in testifying that the wall is carefully and substantially constructed and in no way endangers public safety. No criticism of the wall related to public morals, or phases of the general' welfare which have not already been discussed here.
Against this factual background the ordinance itself may be analyzed. “(f) The set back and yard requirements of this ordinance shall not apply to any necessary retaining wall, or to any fence or wall which is less than five feet high and less than 60 per cent solid. Nothing herein *60shall prevent the construction of a rear line fence or wall to a height not exceeding six feet, except that where the rear of any corner lot abuts any lot facing on a street which is a side street with reference to said corner lot, any fence built on the rear lot line shall not be in excess of five feet in height and shall be less than 60 per cent solid.” From what level the five foot and six foot limitations are to be measured, whether from the street level, the natural level, the level of the highest point of the lot, or the top of a necessary retaining wall where one is needed, is left in complete darkness. "Whether there is to be any limitation whatever on a retaining wall is discouragingly vague. "Whether the retaining wall may be solid or is to be subjected to the peculiar condition that it shall be “less than 60 per cent solid” is not clear. What is meant by “solid” is not explained. What the restrictions are upon rear line fences are almost as difficult to perceive. The ordinance is well nigh void for uncertainty. S. v. Crenshaw, 94 N. C., 877.
It is admitted that a retaining wall along the edges of this lot was necessary. It is not denied that .such a retaining wall could have been lawfully constructed-to the natural level of the lot, although it is denied that the wall could have been (as it was) constructed lawfully to the height of this wall, a point approximately the same height as the highest point of the lot. There is no contention that the five foot or six foot limitations apply to the height of retaining walls as measured from the street levels; they may be as high as is “necessary.” The majority view declares that “as the ordinance expressly excepts any necessary retaining wall,” “so much of the wall as extends from the street line to the natural level of petitioner’s lot is not prohibited” and “it should be understood that the (judgment) relates only to that portion of the wall which is above the natural level of petitioner’s lot.” Under this interpretation, where there are retaining walls, the ordinance is treated as prohibiting any portion of the wall rising above the natural level of the lot at the sidewalk edge. Not only does such an interpretation prohibit an owner of a lot which is above the street level from having any wall whatever beyond the minimum requirements of a “necessary retaining wall,” but it would produce the same result as to owners of lots lying below the street level. Thus, owners who have retaining walls will be prohibited from constructing a wall which rises above the natural level of their lots, but citizens not having retaining walls can construct fences rising to five, or even six feet. This result can scarcely be labeled other than arbitrary and discriminating, and is contrary to the settled law of this State. S. v. Roberson, 198 N. C., 70 (72), and eases cited.
The ordinance declares, “The set back and yard requirements of this ordinance shall not apply to any necessary retaining wall, or to any fence or wall which is less than five feet high and less than 60 per cent solid.” In other words, there are two exceptions to these restrictions: *61(1) Necessary retaining walls, and (2) walls less than five feet bigb wbicb are also less than 60 per cent solid. This case is one admittedly involving a retaining wall. Accordingly, a literal interpretation of the ordinance would result in a complete elimination of all restrictions as to such necessary walls as the one under consideration, i.e., a retaining wall.
“Zoning ordinances are in derogation of the right of private property, and where exemptions appear in favor of the property owner, they should be liberally construed in favor of such owner.” In re Appeal of Supply Co., 202 N. C., 496 (500).
What, then, is a necessary retaining wall? One which is no higher than is reasonably necessary to retain the soil of the lot at the sidewalk edge. How much higher than this may the wall he extended? The ordinance gives no guide except that, by implication only, the five-foot, 60 per cent limit might he read into this exception. Unless persons having retaining walls are to be prohibited entirely from having fences or walls around their properties, by necessary implication they may extend such walls not exceeding five feet above the top of the retaining walls so long as the extended portion is not exceeding 60 per cent solid. Even this interpretation may he subject to the criticism that it is an unreasonable restriction upon the rights of the property owners, hut it is certainly one indicating a more sympathetic regard for long-established property rights than does the majority view; and, where such a fence limitation is imposed only upon corner lots at street intersection corners in the interest of public safety, it might well be upheld as a valid ordinance. It is worth noting that no such limitations are involved in the instant case, as the present wall does not corner on the intersection of two streets but merely at the intersection of a street and an alley. As nearly every residence lot has an alley intersecting with a street, ordinances seeking to render more safe vehicular travel in and out of said alleys must be careful not to impose confiscatory restrictions upon the owners of the land merely to the end that drivers of cars and trucks he relieved of the ordinary duties of due care.
“Legislatures may not, under the guise of the police power, impose restrictions that are unnecessary and unreasonable upon the use of private property or the pursuit of useful activities.” Seattle Trust Co. v. Roberge, 278 U. S., 116 (121), and cases cited. “It is also fundamental that such power must be exercised so as not to infringe arbitrarily or unnecessarily upon private rights.” Downey v. Sioux City, 208 Iowa, 1273, 1276, 227 N. W., 125, 126-7; 43 C. J., sec. 230, p. 230. “Laws enacted in the exercise of the police power, whether by municipal corporations acting in pursuance of the laws of the state or by the state itself, must he reasonable, and are always subject to the provisions of both the Federal and state constitutions, and they are always subject to *62judicial scrutiny.” McCray v. City of Chicago, 292 Ill., 60, 126 N. E., 557, cited with approval in Bettey v. City of Sidney, 79 Mont., 314, 257 Pac., 1007, 1009.
"Whether or not an ordinance is reasonable is a matter subject to determination in the courts. The reasonableness of an ordinance is a question of law for the court. Hawes v. City of Chicago, 158 Ill., 653, 42 N. E., 373; Continental Oil Co. v. City of Twin Falls, 49 Idaho, 89, 286 Pac., 353; 2 McQuillan, Mun. Corp., Second Ed., p. 860. An ordinance will be declared void by the courts “because unreasonable upon a state of facts being shown which makes it unreasonable.” 2 Dillon, Mun. Corp., 5th Ed., sec. 581, quoted with approval in Bettey v. City of Sidney, supra. The rule as to reasonableness and the power of the courts to pass upon this element in ordinances is summarized, after a review of the authorities, as follows, in Mayor and Council of Pocamoke City v. Standard Oil Co., 162 Md., 368, 159 Atl., 902 (906): “(1) That restrictions imposed by the state or some agency of the state upon the use of private property cannot be justified under the police power unless they are reasonably necessary for the adequate protection of the public welfare, safety, health, comfort, or morals; (2) that whether such restrictions are reasonable in fact is a judicial question. . . .” In Wonrak v. Kelley, 129 Ohio St., 268, 195 N. E., 65, the Court declared void an ordinance limiting the height of fences and in doing so concluded with these words, which are, in my opinion, appropriate here: “The ordinance here under consideration has no real or substantial relation to the needs of the public health, morals, welfare, or public safety, and it is unreasonable and arbitrary in character. It unduly invades the right which the property owner has in his property . . .”
As interpreted by the majority, the instant ordinance, in my opinion, is unreasonable and void in that (1) it bears no substantial relation to the public health, safety, morals, or general welfare, and (2) is an unwarranted and arbitrary restriction upon the essential and fundamental rights of residence owners. Further, in ordering the destruction of part of petitioner’s wall, in my opinion, petitioner is deprived of property without compensation. “We must avoid the belief that under the police power ‘all private property is held subject to the temporary and passing phases of public opinion, dominant for a day, in legislative or municipal assemblies.’ . . . Not only do our constitutions, Federal and state, forbid the taking of private property without just compensation, but the consensus of opinion throughout the land cries out against such unfair, arbitrary, oppressive action entirely out of harmony with the spirit of just government.” 3 McQuillan, Mun. Corp., Second Ed., p. 359. In the instant case it is not denied that the petitioner would have the right to fill in his lot to the level of the highest point of that lot, yet he is *63prohibited from building a fence or wall which at its highest point above the street level is nearly five feet lower than the highest point of his lot. An ordinance which permits appellant’s wall to stand provided he fill his back yard with dirt but condemns it if he leave it a garden, rests upon no solid foundation. It is further observed that the zoning ordinance does not require a permit for the construction of the wall. The authority of the inspector to condemn it finds no sanction in the law. This proceeding, therefore, should be dismissed as nugatory.
In constructing such a wall in the interest of the privacy and safety of his home it seems to me that he has but exercised the inalienable rights granted to every man in the protection of his “castle.” Those rights I consider so well grounded in our system of government and the political tradition of our people that they are secure alike from interference by individual or government. I cannot put from my mind that which I have through most of my four-score years regarded as fundamental — free governments primarily exist for the protection of the rights of the individual governed, not for the destruction of those rights. If this ordinance is valid, then a privet, spruce or white pine hedge around, or partly around, a man’s home could be destroyed by the whim of a municipality inclined to nervous particularity bordering on absurdities.