Opinion
(Filed 11 December, 1935.)
Statutes A e: Injunctions B c — Plaintiffs held not entitled to enjoin election to determine whether repeal statute should apply to the county.
Plaintiffs sought to enjoin the holding of an election under ch. 493, Public Laws of 1935, to determine whether the county should be subject to a statute which provided for the repeal of the general law relating to intoxicating liquor and for sale of intoxicating liquor under county supervision and control, and provided that sale otherwise as permitted by the statute should be misdemeanor. Plaintiffs did not allege that they will suffer any direct injury, or that there will be any invasion of their property rights if the election is held, or if the statute is put into effect as a result of the election. Held: In the absence of such allegations, plaintiffs are not entitled to the injunctive relief sought, and judgment of the lower court requiring defendants to give bond as a condition precedent to the holding of the election is error.
APPEAL by both plaintiffs and defendants from Frizzelle, J., at Chambers in Snow Hill, 13 July, 1935. From GREENE.
L. R. Varser, I. C. Wright, K. A. Pittman, and John D. Langston for plaintiffs.
Walter D. Sheppard for defendants.
DEVIN, J., took no part in the consideration or decision of this case.
CLARKSON, J., dissenting.
This is an equitable action wherein the plaintiffs, upon allegations of unconstitutionality, sought to enjoin the defendants from holding the election and putting into effect the other provisions of chapter 493, Public Laws 1935, which provide for an election to be held to determine whether the statute which carries two major provisions shall become the law in Greene County, these provisions being, first, to make the general law prohibiting traffic in alcoholic beverages (Art. 8, ch. 66, Vol. 3, Consolidated Statutes) inapplicable to Greene County and to establish a method for such traffic under county supervision and control, and, second, to make the traffic in alcoholic beverages in said county otherwise than provided in said statute a misdemeanor and prescribe punishment therefor.
The resident judge of the Fifth Judicial District entered a number of judgments in this case, the final one of which permitted the carrying out of the provisions of the act conditioned upon the defendants filing a bond indemnifying the petitioners and other taxpayers of Greene County from liability and civil responsibility for any act done or contract made by the defendants pursuant to the provisions of the act. From this judgment both parties appealed, the plaintiff assigning as error the refusal of the court below to enjoin the holding of the election and the putting into effect of the other provisions of the statute, and the defendants assigning as error the provision in the judgment requiring them to furnish an indemnity bond.
Under the authorities cited in Newman et al. v. Watkins et al., Board of County Commissioners, and Royster et al., Board of Elections of Vance County, 208 N.C. 675, the plaintiffs cannot maintain this action for injunctive relief, since they nowhere allege that they will suffer any direct injury, or that there will be any invasion of their property rights if the election is held, or if the statute is put into effect as a result of the election. "Courts never pass upon the constitutionality of statutes except in cases wherein the party raising the question alleges that he is deprived of some right guaranteed by the Constitution, or some burden is imposed upon him in violation of its protective provisions." St. George v. Hardie, 147 N.C. 88 (97).
The action is dismissed.
Affirmed on plaintiffs' appeal.
Error on defendants' appeal.
DEVIN, J., took no part in the consideration or decision of this case.