High Point Surplus Co. v. Pleasants , 263 N.C. 587 ( 1965 )

139 S.E.2d 892 (1965) 263 N.C. 587

HIGH POINT SURPLUS COMPANY, Inc.
v.
Robert PLEASANTS, Sheriff of Wake County, North Carolina, Ben W. Haigh, Chairman, and Billy K. Hopkins, James L. Judd, William T. Gilliam, W. Hal Trentman, Jennings Booth, and W. W. Holding, III, Commissioners, Board of County Commissioners for Wake County, North Carolina.

No. 481.

Supreme Court of North Carolina.

January 29, 1965.

Cannon, Wolfe & Coggin, Greensboro, Broughton & Broughton, by J. Melville Broughton, Jr., Raleigh, for plaintiff appellant.

Thomas A. Banks, Raleigh, for defendant appellees.

Smith, Leach, Anderson & Dorsett, by C. K. Brown, Jr., Raleigh, for the North Carolina Merchants Association, amicus curiae.

PARKER, Justice.

The office of the demurrer here is to test the sufficiency in law of the complaint. This is a summary of the allegations of the complaint, except when quoted:

"[T]he plaintiff is a corporation organized and existing under the laws of the State of North Carolina, with its principal place of business in the city of Raleigh, Wake County, North Carolina." (Emphasis ours.)

Defendant Pleasants is sheriff of Wake County, and is charged with the enforcement of all resolutions adopted by the Board of County Commissioners of Wake County. All other defendants are members of the Board of County Commissioners of Wake County.

"[O]n or about March 2, 1964 the Board of County Commissioners of Wake County adopted a resolution entitled ``Resolution Regulating Sunday Sales of Goods, Wares, and Merchandise.' That a copy of said resolution will be produced at the trial of this matter." (Emphasis ours.)

Plaintiff, and numerous other persons, firms and corporations not named as parties, but in whose behalf this action is instituted, "operates [sic] a general retail and wholesale merchandising store in the City of Raleigh, Wake County, North Carolina, which engages on Sunday in the business of selling of goods, wares and merchandise, the sale of some of which is prohibited, but the status of many articles cannot be ascertained or determined by the terms of said resolution." (Emphasis ours.)

Plaintiff, and the others in whose behalf this action is instituted, derive a substantial dollar volume of business from their Sunday sales.

The resolution passed by the Board of County Commissioners is null and void, in that:

One. "That said resolution by its very terms discriminates against this plaintiff in that Section 2 of said resolution specifically provides that it SHALL APPLY WITHIN ``THE CORPORATE LIMITS AND JURISDICTION OF ANY INCORPORATED CITY OR TOWN, WHOSE GOVERNING BODY, BY RESOLUTION, AGREES TO THIS ORDINANCE AND REGULATION' and therefore, its application does not affect all persons, firms and corporations engaged in operations similar to those of plaintiff but only those located in incorporated towns or cities that have adopted the resolution of the Board of Commissioners of Wake County, all of which is in violation of Section 17, Article I, of the Constitution of North Carolina and in violation of the Fourteenth Amendment to the Constitution of the United States of America."

Two, three, four, five, six, and seven state argumentative legal conclusions that the resolution adopted by the Board of County Commissioners is unconstitutional and violates its right under Article I, section 17, and Article II, section 29, of the North Carolina Constitution, and the Fourteenth Amendment to the United States Constitution.

It is informed and believes that if defendants are not restrained, it, and others like it, will be subjected to a multiplicity of arrests and prosecutions for a violation of the said resolution after its effective date on 31 March 1964, and will suffer irreparable damage, unless defendants are permanently restrained, because it, and others like it, have no adequate remedy at law to prevent irreparable damage.

"On demurrer we take the case as made by the complaint." Barber v. Wooten, 234 N.C. 107, 66 S.E.2d 690. The Court said in Hayes v. City of Wilmington, 243 N.C. 525, 538, 91 S.E.2d 673, 683: "It is elemental that a demurrer may not call to its aid facts not appearing on the face of the challenged pleading. Union Trust Co. v. Wilson, 182 N.C. 166, 108 S.E. 500; Wood v. Kincaid, 144 N.C. 393, 57 S.E. 4; Davison v. Gregory, 132 N.C. 389, 43 S.E. 916."

It is a general and fundamental rule of pleading that on a hearing of a demurrer to a pleading the court ordinarily is limited to a consideration of the pleading demurred to, and an instrument or instruments expressly made a part of the pleading by apt words, and cannot consider evidence, documents, or instruments aliunde of the challenged pleading, such as affidavits and stipulations of the parties. Moore v. W. O. O. W., Inc., 253 N.C. 1, 116 S.E.2d 186; Lamm v. Crumpler, 240 N.C. 35, 81 S.E.2d 138; Foust v. City of Durham, 239 N.C. 306, 79 S.E.2d 519; Towery v. Carolina Dairy, Inc., 237 N.C. 544, 75 S.E.2d 534; McDowell v. Blythe Bros. Co., 236 N.C. 396, 72 S.E.2d 860; Union Trust Co. v. Wilson, 182 N.C. 166, 108 S.E. 500; Davison v. Gregory, 132 N.C. 389, 43 S.E. 916; 71 C.J.S. Pleading § 257; 41 Am.Jur., Pleading, § 246.

"According to the weight of authority, matters extrinsic to a pleading may not be considered on the hearing of a demurrer thereto, even though the parties stipulate or agree that such matters may be considered by the court in determining the demurrer." 41 Am.Jur., Pleading, § 246, p. 466. To the same effect Anno. 137 A.L.R. 483.

It is familiar learning that a demurrer admits, for the purpose of testing the sufficiency of the pleading, the truth of factual averments therein well stated and such relevant inferences as may be deduced therefrom, but it does not admit any legal inferences or conclusions of law asserted by the pleader. McKinney v. City of High Point, 237 N.C. 66, 74 S.E.2d 440. While G.S. § 1-151 requires us to construe liberally the allegations of a challenged pleading, we are not permitted to read into it facts which it does not contain. Thomas & Howard Co. of Shelby, Inc. v. American Mutual Liability Insurance Co., 241 N.C. 109, 84 S.E.2d 337; Johnson v. Johnson, 259 N.C. 430, 130 S.E.2d 876.

This Court has consistently held that our courts of general jurisdiction and the Supreme Court will not take judicial notice of a municipal ordinance. Shoe v. Hood, 251 N.C. 719, 112 S.E.2d 543; McEwen Funeral Service, Inc. v. Charlotte City Coach Lines, Inc., 248 N.C. 146, 102 S.E.2d 816; State v. Clyburn, 247 N.C. 455, 101 S.E.2d 295; Stansbury, N.C. Evidence, 2d ed., sec. 12, p. 22. This seems to be the general rule, in the absence of a statute requiring that notice be taken. Wigmore on Evidence, 3d ed., Vol. IX, Judicial Notice, p. 552.

In G.S. § 160-272, it is stated: "In all judicial proceedings it shall be sufficient to plead any ordinance of any city by caption, or by number of the section thereof and the caption, and it shall not be necessary to plead the entire ordinance or section."

In State v. Fox, 262 N.C. 193, 136 S.E.2d 761, the Court, while recognizing the general rule, held that it "does not preclude the courts, when called upon to construe an excerpt from an ordinance set out in a bill of indictment, from interpreting the excerpt correctly by construing it with the rest of the ordinance, certainly when the entire ordinance is before the court by stipulation of the parties."

"The general rule is that county, town, or municipal laws, ordinances, by-laws, or resolutions themselves are not judicially known to courts having no special function to enforce them, although the power of municipalities to pass ordinances or by-laws is judicially noticed by the courts within the state." 31 C.J.S. Evidence § 27. To the same effect Wigmore on Evidence, 3d ed., Vol. IX, p. 552.

We now have the task of applying the above stated principles of law to the facts stated in the complaint.

According to the facts stated in the complaint, plaintiff operates a general retail and wholesale merchandising store in the city of Raleigh, Wake County, North Carolina, and brings this action as a class action in behalf of itself and all others in the city of Raleigh engaged in similar business. Plaintiff, and the others in whose behalf this action is instituted, derive a substantial dollar volume of business from their Sunday sales. On or about 2 March 1964 the Board of County Commissioners of Wake County adopted a resolution entitled "Resolution Regulating Sunday Sales of Goods, Wares and Merchandise." The object of this action is to have this resolution adjudged unconstitutional. The words of this resolution are not set forth in the complaint. The complaint states "a copy of said resolution will be produced at the trial of this matter." Such being the facts, on demurrer we do not take judicial notice of this resolution to determine whether it is constitutional as defendants contend, or unconstitutional as plaintiff contends.

The parties agreed to the case on appeal. They agreed the case on appeal shall constitute the following: The complaint, the restraining bond, the temporary injunction, copy of Wake County ordinance adopted 2 March 1964, demurrer of defendants, order of Judge Bickett dated 14 April 1964 continuing the hearing until 17 April 1964, the final order of Judge Bickett entered 17 April 1964, from which plaintiff appeals, and the appeal entries.

Even if on demurrer, contrary to our decisions and contrary to the weight of authority in this country, we consider the text of the resolution, a fatal defect appears in the complaint. The complaint affirmatively alleges: "That said resolution by its very terms discriminates against this plaintiff in that Section 2 of said resolution specifically provides that it SHALL APPLY WITHIN ``THE CORPORATE LIMITS AND JURISDICTION OF ANY INCORPORATED CITY OR TOWN, WHOSE GOVERNING BODY, BY RESOLUTION, AGREES TO THIS ORDINANCE AND REGULATION' * * *.' According to this allegation this resolution will not apply to plaintiff, who is doing business in the city of Raleigh, and others like it who are engaged in similar business in the city of Raleigh, until and unless the governing body of the city of Raleigh "by resolution, agrees to this ordinance and regulation." The complaint has no allegation that the governing body of the city of Raleigh has by resolution agreed to this ordinance and regulation, and we do not take judicial notice of a municipal ordinance or resolution.

At the end of the case on appeal, which has been agreed upon by the parties, and which is not a part of the case on appeal, there appears a stipulation in another case, plaintiff here against the chief of police and governing body of the city of Raleigh, to the effect that the parties in that case will be bound by the decision of the Supreme Court in the instant case, "and the effectiveness of Resolution No. (1964)—252 adopted by the city council of the city of Raleigh on March 2, 1964, will be controlled by said decision." This stipulation was made by the same attorneys who appear for plaintiff here, and by Paul F. Smith for defendants, the chief of police and the governing body of the city of Raleigh, on 6 October 1964. Judge Bickett's final order in the instant case, from which plaintiff appeals, was rendered on 17 April 1964. At the end of this stipulation, there appears what purports to be Resolution No. (1964)—252 of the governing body of the city of Raleigh agreeing to a resolution adopted by the Board of County Commissioners of Wake County on 2 March 1964. Defendants here have not entered into this stipulation. According to our decisions, and the weight of authority in this country, on demurrer we will not take judicial notice of this purported resolution by the governing body of the city of Raleigh, which is not mentioned in the complaint here or in the case on appeal, and which appears in an extraneous stipulation forming no part of the case on appeal, and entered in another case, and to which stipulation all the parties in the instant case have not appeared, and which was entered into more than five months after Judge Bickett rendered his final order from which plaintiff appeals.

Plaintiff's complaint is fatally defective, in that "the case as made by the complaint" does not show that plaintiff, engaged in business in the city of Raleigh, and those businesses like it engaged in similar business in the city of Raleigh, have been aggrieved by the resolution adopted by the Board of County Commissioners of Wake County, even if, contrary to our decisions and the weight of authority in this country, we take judicial notice of this county resolution which forms no part of the complaint. James v. Denny, 214 N.C. 470, 199 S.E. 617 (definition of aggrieved). "It is a firmly established principle of law that the constitutionality of a statute or ordinance may not be attacked by one whose rights are not, or are not about to be, adversely affected by the operation of the statute." 16 C.J.S. Constitutional Law § 76. A legion of cases from a multitude of jurisdictions in this nation, including a number of ours, is cited to support this statement by C.J.S.

Judge Bickett correctly sustained the demurrer to the complaint, and dissolved the temporary injunction he had previously entered. His continuing the temporary injunction in full force and effect in the exercise of his discretion pursuant to G.S. § 1-500 until the case is disposed of on appeal shall no longer be operative. However, Judge Bickett improperly dismissed the action upon demurrer, since plaintiff may move for leave to amend in accordance with G.S. § 1-131. East Carolina Lumber Co. v. Pamlico County, 250 N.C. 681, 110 S.E.2d 278. The portion of Judge Bickett's order sustaining the demurrer and dissolving the temporary injunction is sustained, but the portion thereof dismissing the action is erroneous and should be stricken therefrom. The decision is without prejudice to plaintiff's right to move in the superior court for leave to amend its complaint pursuant to G.S. § 1-131, if it so desires, so it can allege additional facts, and also allege facts, if it can, as to whether it has no adequate remedy at law so as to invoke the extraordinary power of a court of equity. Walker v. City of Charlotte, 262 N.C. 697, 138 S.E.2d 501; Smith v. Hauser, 262 N.C. 735, 138 S.E.2d 505. It is so ordered. As so modified, the order of Judge Bickett is affirmed.

Modified and affirmed.