Bulova Watch Co. v. Brand Distributors of North Wilkesboro, Inc. ( 1973 )

VAUGHN, Judge.

We are of the opinion that defendants’ attempt to appeal from the order allowing the preliminary injunction is premature and we will treat the same as a petition for certiorari which we allow.

Defendants’ sole assignment of error is as follows:

“The Court erred in issuing a preliminary injunction in each of these cases for the reason that the Fair Trade Act is in violation of the Constitution of the State of North Carolina and the Act has probably been repealed by subsequent legislation.”

The constitutionality of the act was not before Judge Kivett when he heard the application for preliminary injunction. The Supreme Court so held in Carbide Corp. v. Davis, 253 N.C. 324, 116 S.E. 2d 792. The cited case also involves1 the “Fair Trade Act.” The trial judge had declined to continue a temporary restraining order until trial on the grounds that the act was unconstitutional. The Supreme Court quoted with approval from other writings which were to the effect that the constitutionality of an act will not be determined on the question being raised on preliminary motions or interlocutory orders.

Moreover, the act in question was expressly held to be constitutional in Lilly & Co. v. Saunders, 216 N.C. 163, 4 S.E. 2d 528. Though decided by the Supreme Court in 1939, the case continues to be binding on the Court of Appeals and the trial courts of this State.

Affirmed.

Judges Brock and Hedrick concur.