Watkins v. City of Wilson , 255 N.C. 510 ( 1961 )

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121 S.E.2d 861 (1961) 255 N.C. 510
T. A. WATKINS
v.
CITY OF WILSON, a body corporate and politic; John Wilson, Mayor and Chairman of the Board of Commissioners of the City of Wilson; Thomas Watson, Jr., T. F. Hackney, Winette Peters, H. P. Benton, Jr., Earl Bradbury and Edger Norris, Serving as the Board of Commissioners of the City of Wilson; Mrs. Cecil Newberry, Mrs. T. L. Noe, Mrs. Albert Thomas, W. F. Peabody, Mrs. John G. Ashe, Jr., Mrs. M. W. Sutton, Jr., all being Precinct Registrars appointed for the May 2, 1961, Elections of the City of Wilson; Mrs. George Thomas Daniels, Mrs. W. F. Thrasher, W. L. Morris, Gary T. Fulghum, John Harriss, Mrs. Annie Bishop, Janie Liverman, Mrs. Dovery Watson, M. D. James, Mrs. Russell Landen, Mrs. H. T. Barkley, Mrs. Robert Pearce, all being Precinct, Election Judges appointed for the May 2, 1961, Elections of the City of Wilson.
No. 248.
Supreme Court of North Carolina.
October 11, 1961.
*862 Romallus O. Murphy, Wilson, Samuel S. Mitchell, and George R. Greene, Raleigh, for plaintiff-appellant.

Lucas, Rand and Rose, Wilson, for defendant-appellees.

PER CURIAM.

The power and duty of a court to declare an act of the Legislature void because it violates some constitutional provision was recognized in North Carolina as early as 1787. Bayard v. Singleton, 1 N.C. 42[5]. Courts do not, however, exercise this power at the behest of one not adversely affected by the statute. They act only when necessary for the protection of some right guaranteed by the Constitution.

The rule was succinctly stated and aptly applied when the right of Mr. Justice Black to serve as a member of the Supreme Court of the United States was challenged. The Court, in denying the right to question the appointment, said: "It is an established principle that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained, or is immediately in danger of sustaining, a direct injury as the result of that action and it is not sufficient that he has merely a general interest common to all members of the public." Ex parte LeVitt, 302 U.S. 633, 58 S. Ct. 1, 82 L. Ed. 493. We have consistently applied the rule so stated. Greensboro v. Wall, 247 N.C. 516, 101 S.E.2d 413; Fox v. Board of Com'rs of Durham, 244 N.C. 497, 94 S.E.2d 482; Turner *863 v. Reidsville, 224 N.C. 42, 29 S.E.2d 211; Leonard v. Maxwell, 216 N.C. 89, 3 S.E.2d 316; Newman v. Watkins (Comrs. of Vance), 208 N.C. 675, 182 S.E. 453; Sprunt v. Hewlett (Comrs. of New Hanover), 208 N.C. 695, 182 S.E. 655; Hill v. Board of Comr's of Greene, 209 N.C. 4, 182 S.E. 709; Yarborough v. North Carolina Park Comm., 196 N.C. 284, 145 S.E. 563.

On the admitted facts plaintiff is not in a position to call for a determination of the constitutionality of the statutory provision. Even if credited with all rejected ballots, he would not have enough votes to change the result. The court correctly dismissed the action.

Affirmed.