Bland v. City of Wilmington ( 1971 )

178 S.E.2d 25 (1970) 10 N.C. App. 163

Jack T. BLAND, E. R. Brown, F. R. Ray, Haywood Brown and C. C. Jordan, Jr., on behalf of themselves and other members of the Fire Department of the City of Wilmington, and Wilmington Firefighters' Assn., Local 1284
v.
CITY OF WILMINGTON, North Carolina, Mayor L. M. Cromartie, Councilmen John Symmes, W. Alex Fonvielle, Jr., Herbert Brand and B. D. Schwartz.

No. 705SC523.

Court of Appeals of North Carolina.

December 16, 1970. Certiorari Allowed February 2, 1971.

James L. Nelson, Wilmington, for plaintiff appellants.

Cicero P. Yow, Wilmington, for defendant appellees.

Certiorari Allowed by Supreme Court February 2, 1971.

VAUGHN, Judge.

Although we express no opinion on the reasons and findings of the trial judge set out in the judgment, we affirm the result reached in dismissing the action. No firemen presently reside outside the city and it is not known if any will do so. What action, if any, the city will take in the event of such an occurrence is also unknown. In effect plaintiffs assert that defendant will act contrary to law, as plaintiffs contend the law to be, if plaintiffs act contrary to law as the defendants contend the law to be. These allegations do not present a justiciable controversy. The courts of this state do not issue anticipatory judgments resolving controversies that have not arisen.

"Our Uniform Declaratory Judgment Act does not authorize the adjudication of mere abstract or theoretical questions. Neither was this act intended to require the Court to give advisory opinions when no genuine controversy presently exists between the parties. Actions for declaratory judgment will lie for an adjudication of rights, status, or other legal relations only when there is an actual existing controversy between the parties. Lide v. Mears, supra [231 N.C. 111, 56 S.E.2d 404]." Angell v. Raleigh, 267 N.C. 387, 148 S.E.2d 233.

A similar, though not identical, issue was presented in United Public Workers v. Mitchell, 330 U.S. 75, 67 S. Ct. 556, 91 L. Ed. 754. In that case individual Civil Service employees and the United Public Workers of America joined in a suit alleging that the individuals desired to engage in political management and political campaigns contrary to the provisions of the Hatch Act and the Civil Service Rules which they contended were unconstitutional. A declaratory judgment was sought. As to all parties except the one who had actually engaged in the prohibited activity and faced dismissal under the Act, the Supreme Court of the United States held that no actual controversy existed which would support a declaratory judgment.

The result reached in dismissing the action is affirmed. The cause is remanded for the entry of a judgment dismissing the action for the reasons stated in this opinion.

Remanded.

BROCK and MORRIS, JJ., concur.