D & W, INC. v. City of Charlotte , 268 N.C. 720 ( 1966 )

152 S.E.2d 199 (1966) 268 N.C. 720

D & W, INC., t/a Merry Go-Go Round, on behalf of itself, and Diab, Inc., t/a Pecan Grove Supper Club, and such other citizens and plaintiffs of Mecklenburg County, North Carolina, affected by the Turlington Act and the Alcoholic Beverage Control Act of North Carolina
v.
The CITY OF CHARLOTTE, a Municipal Corporation, et al.

No. 286.

Supreme Court of North Carolina.

December 19, 1966.

Plumides & Plumides, Jerry W. Whitley, Charlotte, for plaintiff appellees.

T. W. Bruton, Atty. Gen., James F. Bullock, Asst. Atty. Gen., for defendant appellants.

John H. Small, Charlotte, amicus curiae.

PER CURIAM.

Judge Riddle's order decided a purely legal question and restrained defendants "until further order of the court," from conducting themselves except in accordance with the law as announced therein. It was, in its effect and scope, a final judgment granting for an indefinite period the only relief sought by plaintiffs, i. e., injunction. Our opinion, in addition to holding that the remedy of injunction was not available to plaintiff, declared the law of this State with respect to the purchase, transportation, possession, and use of alcoholic beverages as defined by G.S. § 18-60, reversed the judgment of Riddle, J., and was likewise a final judgment. Judge Campbell should have allowed the motion of the Attorney General and entered the order which he tendered. Neither G.S. § 1-221, G.S. § 1-298, nor G.S. § 7-12 authorized him to delay the enforcement of an order of this Court.

G.S. § 1-221 provides: "Every judgment given in a court of record having jurisdiction of the subject is, and continues to be, in force until reversed according to law." The judgment of the Superior Court entered by Judge Riddle from which defendants appealed was reversed by this Court "according to law" on November 30, 1966. G.S. § 1-298 applies only to judgments of the Superior Court which have been affirmed or modified on appeal; it has no application to a decision of this Court reversing the judgment of the lower court. G.S. § 7-12 applies only to appeals from interlocutory judgments. As heretofore pointed out, the judgment appealed from in this case was a final judgment.

Our decision in this case was that "the judgment of the court below is Reversed"; the opinion states the reason for the decision. McIntosh, North Carolina Practice and Procedure, § 26 (1st Ed.1929). Our mandate vacated the injunction just as effectively as if we had said, "The injunction rendered by Riddle, J., on April 18, 1966, is hereby dissolved." To reverse an injunction is to vacate it. This Court may dissolve as well as issue restraining orders, Robinson v. Robinson, 123 N.C. 136, 31 S.E. 371, and, when it does so, no order of the Superior Court is necessary to implement its decree. In such case it is self-executing. "A reversal, when filed in the lower court, automatically sets the lower court's decision aside without further action by that court. * * *" 5 Am.Jur.2d, Appeal and Error § 990 (1962).

"``When the Supreme Court reversed the judgment of the circuit court, * * * and its mandate was filed in the lower court, * * * the judgment was reversed, whether the lower court afterwards made any order conforming its judgment to that of the Supreme Court or not.'" Cowdery v. London & San Francisco Bank, 139 Cal. 298, 304, 73 P. 196, 198. Accord, Smith v. Garbe, 86 Neb. 91, 124 N.W. 921.

In our judicial system the Superior Court is a court subordinate to the Supreme Court. Upon appeal our mandate is binding upon it and must be strictly followed without variation or departure. No judgment other than that directed or permitted by the appellate court may be entered. "Otherwise, litigation would never be ended, and the supreme tribunal of the state would be shorn of authority over inferior tribunals." Collins v. Simms, 257 N.C. 1, 11, 125 S.E.2d 298, 306; Tussey v. Owen, 147 N.C. 335, 61 S.E. 180; Stephens v. Koonce, 106 N.C. 222, 10 S.E. 996; Murrill v. Murrill, 90 N.C. 120; Ex parte Sibbald, 37 U.S. (12 Pet.) 488, 9 L. Ed. 1167; 5 Am.Jur.2d, Appeal and Error § 991 (1962). That this Court retains jurisdiction of the original cause in every case for the purpose of effectuating its mandate cannot be questioned. Union Trust Co. of Indianapolis v. Curtis, 186 Ind. 516, 116 N.E. 916; Raht v. Southern Railway Co., 215 Tenn. 485, 387 S.W.2d 781. The issuance of the mandate from this Court did not exhaust its jurisdiction to enforce its orders. Pierce v. Box, 284 S.W. 231 (Tex.Civ.App.); Home Owners Loan Corp. v. Wiggins, 188 Miss. 750, 195 So. 339, 196 So. 240. It may issue any appropriate writ or take the necessary steps to compel obedience to its mandate. If it has not already done so, the appellate court may proceed to enter final judgment and, in a proper case, award execution. United States v. Pink, Sup., 36 N.Y.S.2d 961.

In Collins v. Simms, supra, 257 N.C. at 10, 125 S.E.2d at 304, Moore, J., speaking for this Court, said:

"[W]hen it comes to our attention that a lower court has failed to comply with the opinion of this Court, whether through insubordination, misinterpretation or inattention, this Court will, in the exercise of its supervisory jurisdiction, ex mero motu if necessary, enforce its opinion and mandate in accordance with the requirements of justice. N. C. Constitution, Art. IV, § 8; Wescott v. First & Citizens Nat. Bank, 227 N.C. 644, 43 S.E.2d 844."

In Bond v. Wool, 113 N.C. 20, 18 S.E. 77, this Court affirmed an order of the Superior Court dissolving an injunction. The opinion was certified to the Superior Court in due course, but "no judgment [was] written and signed by the presiding judge." In holding that its mandate terminated the case, Clark, J., (later C. J.), speaking for the Court, said:

"While it is more regular, and for many reasons the better course, that judgments should always be signed by the judge, it has been repeatedly held that this is not mandatory. * * *

"The subsequent judgment in the superior court added no validity to the former judgment of that court, nor to the judgment in the supreme court. Its office was simply formal,—to direct the execution to proceed, and to carry the costs subsequently accrued." Id. at 21, 18 S.E. at 78.

It is the practice of the Superior Court to enter judgment in accordance with the opinion of this Court—a practice which should be continued in the interest of clarity, continuity, and for the convenience of those who may examine the records thereafter—, but the efficacy of our mandate does not depend upon the entry of an order by the court below. Where such an order has been entered it "neither added to nor took from the rights of either party." Strickland v. Jackson, 260 N.C. 190, 191, 132 S.E.2d 338, 339. The only order which the Superior Court is now empowered to enter in this case is one dismissing it from the docket at the cost of plaintiffs. Such an order will, of course, refer to our opinion in this case.

While we cannot suppose that Judge Campbell had any purpose to set at nought and disregard the decree of this Court, his attempt to postpone its enforcement was beyond his authority and his order to that effect is a nullity. The decision in this case declares the law now in force in this State with respect to the purchase, transportation, possession, and use of alcoholic beverages. It dissolved the injunction issued by Judge Riddle in the judgment appealed from, and that injunction remains dissolved. Law enforcement officers may forthwith enforce the statutes relating to alcoholic beverages as defined by G.S. § 18-60.

The Clerk of the Supreme Court of North Carolina shall forthwith certify this supplemental mandate to the Superior Court of Mecklenburg County, and the Marshal of this Court is directed forthwith to deliver it directly to that court. Its clerk will immediately enter the decision heretofore certified, together with this supplemental decision, upon the judgment roll of Mecklenburg County. At the next session the judge will enter an order dismissing this action at the cost of plaintiff.

Motion granted.