Fox v. Board of Commissioners of County of Durham

94 S.E.2d 482 (1956) 244 N.C. 497

Herbert J. FOX and wife, Frances Hill Fox, Howard W. Gamble and wife, Paul D. Gamble, Isaac H. Terry, Jr., J. M. Hagy, John B. Nichols and Jule S. Coley, for and on behalf of themselves and other residents and taxpayers of Durham County,
v.
The BOARD OF COMMISSIONERS for the COUNTY OF DURHAM, S. LeRoy Proctor, George F. Kirkland, Edwin B. Clements, Frank H. Kenan and Dewey S. Scarboro.

No. 667.

Supreme Court of North Carolina.

September 26, 1956.

E. C. Brooks, Jr., and Gantt, Gantt & Markham, Durham, for plaintiffs, appellants.

Reade, Fuller, Newsom & Graham, Durham, for defendants, appellees,

BOBBITT, Justice.

The court below adjudged: (1) that the Act is constitutional and valid in its entirety; and (2) that the zoning ordinance is in all respects valid except as to the quoted definition of "agricultural" and farming purposes." The questions stated and argued in appellants' brief relate solely to the constitutionality of the Act.

True, the quoted portion of the zoning ordinance adjudged void by the court below was challenged as violative of the Act itself. But it was not alleged or shown that any plaintiff owns realty constituting farm land either subject to or exempt from the provisions of the ordinance. Indeed, it is not alleged or shown that any plaintiff owns any property of any kind presently restricted by the ordinance. Plaintiffs cannot present an abstract question and obtain an adjudication in the nature of an advisory opinion. Bragg Development Co. v. Braxton, 239 N.C. 427, 79 S.E.2d 918; Hood ex rel. United Bank & Trust Co. v. Richardson Realty, Inc., 211 N.C. 582, 591, 191 S.E. 410.

Plaintiffs alleged that they will suffer irreparable injury unless defendants are restrained from using county tax funds to implement the Act and the ordinance. This is based solely on their status as residents and taxpayers of Durham County. Should an unauthorized or illegal tax be levied against any of the plaintiffs, an adequate remedy at law is available. G.S. 105-406; Bragg Development Co. v. Braxton, supra; Newman v. Watkins, 208 N.C. 675, 182 S.E. 453.

In 28 Am.Jur., Injunctions sec. 182, the general rule is stated as follows: "The usual ground for asking injunctive relief against the enforcement of statutes is their invalidity, but that, of itself, is not sufficient to warrant the exercise by equity of its extraordinary injunctive power. In other words, the mere fact that a statute is alleged to be unconstitutional or invalid will not entitle a party to have its enforcement enjoined. Further circumstances must appear bringing the case under some recognized head of equity jurisdiction and presenting some actual or threatened and irreparable injury to complainant's rights for which there is no adequate legal remedy. If it is apparent that the law can furnish all the relief to which the complainant is entitled, the injunction will be refused."

When public officials act in accordance with and under color of an act of the General Assembly, the constitutionality of such statute may not be tested in an action to enjoin enforcement thereof unless it is alleged and shown by plaintiffs that such enforcement will cause them to suffer personal, direct and irreparable injury. Newman v. Watkins, supra, and cases cited; Hood ex rel. United Bank & Trust Co. v. Richardson Realty, Inc., supra; also, see Amick v. Lancaster, 228 N.C. 157, 44 S.E.2d 733. The rule as stated was fully recognized, not impaired, in State ex rel. Summrell v. Carolina-Virginia Racing Association, 239 N.C. 591, 80 S.E.2d 638, and in State ex rel. Taylor v. Carolina Racing Association, 241 N.C. 80, 84 S.E.2d 390. It has been frequently pointed out that "the courts will not declare void an Act of the Legislature unless the question of its constitutionality is presently presented and it is found necessary to do so in order to protect rights guaranteed by the Constitution." Turner v. City of Reidsville, 224 N.C. 42, 46, 29 S.E.2d 211, 214; State v. Lueders, 214 N.C. 558, 200 S.E. 22. The rule is epitomized in this succinct statement of Adams, J.: "A party who is not personally injured by a statute is not permitted to assail its validity; * * *." Yarborough v. North Carolina Park Commission, 196 N.C. 284, 288, 145 S.E. 563, 567.

"A statute may be valid in part and invalid in part." 82 C.J.S., Statues, § 92; Constantian v. Anson County, 244 N.C. 221, 228, 93 S.E.2d 163, and cases cited. This applies equally to an ordinance. Connor, J., reminds us that confusion is caused "by speaking of an act as unconstitutional in a general sense." St. George v. Hardie, 147 N.C. 88, 97, 60 S.E. 920, 924. Yet plaintiffs, notwithstanding their failure to allege of show that any provision of the Act or of the ordinance impinges on them in any way, undertake to have the court consider both the Act and the ordinance in bulk and pass on the constitutionality of the numerous provision's contained therein.

The validity of the ordinance, apart from separable details, depends on the constitutionality of the Act. In due course, this Court will decide whether the Act, or a similar act, is constitutional, in whole or in part; but not now on this record. The constitutionality of specific provisions of the Act and of the ordinance must be considered in relation to whether the impact made by enforcement thereof on persons challenging the Act and ordinance will result in an invasion or denial of their specific personal or property rights under the Constitution. Plaintiffs do not allege or show that the enforcement of any specific provisions of the Act or ordinance has made or will make such impact on them.

It is noted that plaintiffs do not allege or show that demand has been made on them for the payment of fees of any kind in connection with the enforcement of the ordinance. Indeed, in the mimeographed copy of the ordinance filed in this Court, it appears that the provisions as to fees, originally appearing in Section XXV, paragraph 4, have been stricken therefrom. Too, it appears that the provision as to penalties for violation of the ordinance, originally appearing in Section XXXVI, has been stricken therefrom.

Consideration of the cases cited in appellants' brief wherein the constitutionality of a statute was successfully challenged reveals that the constitutional question was properly presented by a person directly and personally affected thereby.

Our conclusion is that the court below was in error in undertaking to rule on the constitutionality of the Act and on the validity of the provisions of the ordinance. Hence, the judgment is vacated and the cause remanded with direction that the action be dismissed, plaintiffs' allegations being insufficient to entitle them to injunctive relief.

Judgment vacated and cause remanded.

JOHNSON, J., not sitting.

RODMAN, J., took no part in the consideration or decision of this case.