Green v. Eure , 27 N.C. App. 605 ( 1975 )

220 S.E.2d 102 (1975) 27 N.C. App. 605

Walter G. GREEN
v.
Thad EURE, as Secretary of State.

No. 7510SC347.

Court of Appeals of North Carolina.

December 3, 1975. Certiorari Denied and Appeal Dismissed February 3, 1976.

Walter G. Green, pro se.

Atty. Gen. Rufus L. Edmisten by Deputy Atty. Gen. James F. Bullock, Raleigh, for defendant-appellant.

Certiorari Denied and Appeal Dismissed by Supreme Court February 3, 1976.

PARKER, Judge.

The trial court made findings and conclusions favorable to defendant both on the merits of plaintiff's contentions and on defendant's affirmative defenses. Because we find that plaintiff lacks standing to raise the questions which he seeks to have adjudicated in this action, we affirm the judgment dismissing the action without reaching the merits of plaintiff's contentions.

The Courts of this State have no inherent power to review acts of the General Assembly and to declare invalid those which the Courts disapprove or, upon their own initiative, find to be in conflict with the Constitution. The Courts and the Legislature are coordinate branches of the State government and neither is superior to the other. Nicholson v. Education Assistance Authority, 275 N.C. 439, 168 S.E.2d 401 (1969). Speaking for our Supreme Court in that case, Justice Lake said (p. 447, 168 S.E.2d p. 406):

"The authority of this Court to declare an act of the Legislature unconstitutional arises from, and is an incident of, its duty to determine the respective rights and liabilities or duties of litigants in a controversy brought before it by the proper procedure. To do so, this Court, in the event of a conflict between two rules of law, must determine which is the superior rule and, therefore, the rule governing the rights and liabilities or duties of the parties to the controversy before the Court. If there is a conflict between a statute and the Constitution, this Court must determine the rights and liabilities or duties of the litigants before it in accordance with the Constitution, because the Constitution is the superior rule of law in that situation."

Moreover, "[o]nly those persons may call into question the validity of a statute who have been injuriously affected thereby in their persons, property or constitutional rights." Canteen Service v. Johnson, Comr. of Revenue, 256 N.C. 155, 166, 123 S.E.2d 582, 589 (1962). "The rationale of this rule is that only one with a genuine grievance, one personally injured by a statute, can be trusted to battle the issue." Stanley, Edwards, Henderson v. Dept. of Conservation & Development, 284 N.C. 15, 28, 199 S.E.2d 641, 650 (1973). "It is not sufficient that he has merely a general interest common to all members of the public." Charles Stores v. Tucker, 263 N.C. 710, 717, 140 S.E.2d 370, 375 (1965).

Here, plaintiff has alleged he is a citizen and taxpayer of the State. As such, he has no more than a "general interest common to all members of the public" in the questions he seeks to have determined in this litigation. He has neither alleged nor offered proof that he occupies with respect to those questions any status legally different from that of all other citizens and taxpayers of the State. That he is an attorney at law actively practicing his profession in this State is not sufficient to give him standing such as to authorize the court to interpret for him or to determine the validity of any statute which he may choose to question.

In the leading case of Schieffelin v. Komfort, 212 N.Y. 520, 106 N.E. 675 (1914), the New York Court of Appeals was confronted with a case in which, as in the case now before us, the validity of a statute leading to changes in the State Constitution was involved. In that case the plaintiff, a citizen, resident elector, and taxpayer of New York, sought an injunction to restrain the Secretary of State and others from taking steps preliminary to the nomination and election of delegates to a constitutional convention. Plaintiff contended that the act of the New York Legislature under which the people of the State had voted to call the convention was itself unconstitutional and void. The lower New York courts found plaintiff had standing to raise the question but found the challenged act to be constitutional and valid. The Court of Appeals held that plaintiff had no standing and therefore affirmed the order denying an injunction without reaching or passing on the constitutional questions which plaintiff sought to raise. Justice Chase, speaking for the New York Court of Appeals, said (106 N.E. at pp. 677, 678):

"We are of the opinion that there is no inherent power in a court of equity to set aside a statute as unconstitutional except in a controversy between litigants where it is sought to enforce rights or to enjoin, redress, or punish wrongs affecting the individual life, liberty, or property of one or more of the litigants. The court has no inherent power to right a wrong unless thereby the civil, property, or personal rights of the plaintiff in the action or the petitioner in the proceeding are affected.

The rights to be affected must be personal as distinguished from the rights in common with the great body of people. Jurisdiction has never been directly conferred upon the courts to supervise the acts of other departments of government. The jurisdiction to declare an act of the Legislature unconstitutional arises because it is the province and duty of the judicial department of government to declare the law in the determination of the individual rights of the parties.

The assumption of jurisdiction in any other case would be an interference by one department of government with another department of government when each is equally independent within the powers conferred upon it by the Constitution itself. Matter of Guden, 171 N.Y. 529, 64 N.E. 451.

Jurisdiction, being the power to hear and determine, is not given to the courts as guardians of the rights of the people generally against illegal acts of the executive or legislative branches of government. When a controversy arises between litigants, in which controversy the Constitution and an act of the Legislature are each invoked and they are in conflict, it is necessary to follow the Constitution, which is the supreme law, and ignore the act of the Legislature, and thus incidentally and necessarily the courts pass upon an act of a co-ordinate and independent department of government. That is the extent of the power of the judiciary over the legislative branch of government."

We find the reasoning of the New York Court of Appeals both persuasive and in harmony with the views many times expressed by our own Supreme Court.

Because the courts possess only judicial power, they may not decide mere differences of opinion between citizens, or between citizens and the State, concerning the validity of a statute. Exercise of the judicial power is properly invoked only when it is necessary to determine the respective rights and liabilities or duties of litigants in an actual controversy properly brought before the court. It is not appropriate merely to determine questions of general public interest. Plaintiff here has shown only such interest as is shared generally by all residents, citizens, and taxpayers of the State. He has failed to show that individual interest which is requisite for standing in court.

Nothing in this opinion should be construed as an intimation that if the court had jurisdiction in a case properly presented by a party having standing to do so, it would deem the challenged Acts of the General Assembly, or the votes of the people taken thereunder, to be invalid. We hold only that the plaintiff in the present action has no standing to maintain it. The judgment dismissing plaintiff's action is

Affirmed.

BROCK, C. J., and ARNOLD, J., concur.