Ferguson v. Riddle

62 S.E.2d 525 (1950) 233 N.C. 54

FERGUSON et al.
v.
RIDDLE et al.

No. 599.

Supreme Court of North Carolina.

December 13, 1950.

J. O. Tally, Jr., Fayetteville and W. D. Sabiston, Jr., Carthage, for plaintiffs-appellants.

Spence & Boyette, Carthage, for defendants-appellees.

DEVIN, Justice.

The court denied the plaintiffs' motion for a restraining order enjoining the election called to be held August 26 on the question of legalizing the sale of beer and wine in Moore County. Thereafter the election was held and the vote was against the sale of beer and wine. The defendants insist that the questions raised by the plaintiffs' appeal have now become academic. Saunders v. Bulla, N.C., 61 S.E.2d 607; Eller v. Wall, 229 N.C. 359, 49 S.E.2d 758; Penland v. Gowan, 229 N.C. 449, 50 S.E.2d 182; State v. Cochran, 230 N.C. 523, 53 S.E.2d 663. But we think the decisions cited are not controlling on the facts here presented. In the case at bar restraining the election was not the sole object of the litigation. Eller v. Wall, supra; Penland v. Gowan, supra. The plaintiffs as citizens and taxpayers have alleged that the election, if called and held on the date named, would be in violation of the restrictions contained in the statute, would be illegal and void, and that if the vote went against the legal sale of beer and wine property rights of the plaintiffs and of others would be materially affected and the county suffer serious impairment of revenue. The plaintiffs are entitled to a determination of the questions presented by their appeal.

The statute, G.S. § 18-124, under which the election was called and held contains these provisions: "(d) Time of calling election.—Whenever a petition for an election is presented to the county board of elections pursuant to the provisions of this article, said board shall within thirty (30) days call the election petitioned for. * * * (f) Restrictions as to time of election.—No election shall be held pursuant to the provisions of this article in any county within sixty (60) days of the holding of any general election, special election, or primary election in said county or any municipality thereof." G.S. § 18-124(d, f).

The able judge of the Superior Court, who heard this matter below, was of the opinion that the prohibition contained in the statute against a county election on the question of legal sale of beer and wine within sixty days of any general or municipal election referred to the time of making the order calling the election, and as admittedly no other election at that time (May 30, 1950) had been called, the subsequent calling and holding of a municipal election did not render the election of August 26 illegal. Accordingly, the motion for restraining order was denied, and demurrer ore tenus to the complaint sustained.

We are unable to concur in this view. The statute declares that no election shall be held within sixty days of the holding of a municipal election. Here it appears that an election in good faith, in conformity with law, was held August 15, 1950, in a municipality of and within the County of Moore, within less than sixty days of the date of county election now in question.

Defendants contend that under this construction of the statute, it is always within the power of a municipality in the county, if it sees fit, to render ineffectual a county election on the legal sale of beer and wine, and that this is not in accord with the legislative purpose. But the statute makes no exception. We have no power to add to or subtract from the language of the statute. The province of the Court is to interpret statutes conformable to the language in which they are expressed, and to declare the law in accord with the will of the law-making power, when exercised within constitutional limits. The question of the wisdom or propriety of statutory provisions is not a matter for the courts, but solely for the legislative branch of the state government.

For the reasons herein set out the order sustaining defendants' demurrer ore tenus to the complaint must be held for error and the judgment reversed.