Lucas v. . Comrs. of Beaufort

CLARKSON, J., dissenting. This action was first instituted by the plaintiffs to enjoin the defendants from holding an election and putting into effect the provisions of chapter 493 of the Public Laws of 1935, upon the ground that the statute is unconstitutional and void. On 24 June, 1935, the plaintiffs secured from Frizzelle, J., a temporary order restraining the defendants from holding such election and citing said defendants to appear on June 28 to show cause why such restraining order should not be continued until the final hearing. Before notice of this temporary order was served upon the defendants they procured from Small, J., a temporary order restraining the plaintiffs from interfering by injunction or otherwise with their holding the election, and the judgment entered on 27 June, by Small, J., upon the hearing to determine whether his former order should be made permanent, contains the following: "It is further ordered and adjudged that the plaintiffs and each of them and their agents and attorneys be and they are hereby enjoined and restrained from in any way attempting to interfere with the defendants in the holding of said election and the performance of other duties imposed on them under the provisions of said act." To this judgment the plaintiffs excepted and appealed to the Supreme Court.

The only assignment of error in the record is to the signing of the judgment continuing the restraining order of Small J., in effect until the final hearing, and this assignment raises the only question involved on this appeal, namely, did the defendants have the right to restrain the plaintiffs from interfering by injunction with their holding of the election in Beaufort County as provided by the statute; and, since it is conceded that this election sought to be enjoined by the plaintiffs has been held, this appeal presents a moot question, and, under the decisions of this Court should be dismissed. Rousseau v. Bullis, 201 N.C. 12, and cases there cited.

Appeal dismissed.