Opinion
(Filed 1 November, 1935.)
APPEAL by the plaintiffs and defendants from Frizzelle, J., at July Term, 1935, of NEW HANOVER.
Varser, McIntyre Henry and I. C. Wright for plaintiffs.
Bellamy Bellamy and Bryan Campbell for defendants.
This is an equitable action wherein the plaintiffs, upon allegations of unconstitutionality, sought to enjoin the defendants from holding the election and putting into effect the other provisions of chapter 418 of the Public Laws of 1935, which provides for an election to be held to determine whether the statute which carries two major provisions shall become the law in New Hanover County, these provisions being, first, to make the general law prohibiting traffic in alcoholic beverages (Art. 8, ch. 66, Vol. 3, Consolidated Statutes) inapplicable to New Hanover County, and to establish a method for such traffic under county supervision and control, and, second, to make the traffic in alcoholic beverages in said county otherwise than provided in said statute a misdemeanor and to prescribe punishment therefor.
The several judgments of the court below denied orders restraining the holding of the election and the putting into operation of the other provisions of the statute, except the provision for financing such operations from general county funds, and to these judgments denying injunctive relief the plaintiffs excepted and appealed, and to those provisions in the judgments allowing injunctive relief against the financing of the operations of the statute from general county funds the defendants excepted and appealed.
While there are some differences between Chapter 418 of the Public Laws of 1935, involved in this case, and chapter 493 of said laws, involved in the case of Newman et al. v. Watkins et al., Board of County Commissioners, and Royster et al., Board of Elections of Vance County, ante, 675, the general provisions of the two statutes are to the same effect, and the pleadings in the two cases are similar and the same result is sought through the same method, and practically the same questions are involved in the appeals in the two cases.
Under the authorities cited in the Vance County case, supra, the plaintiffs cannot maintain this action for injunctive relief, since they nowhere allege that they, individually or collectively, will suffer irreparable injury, or that there will be any invasion of their property rights by the holding of the election, or by the putting into effect any or all of the other provisions of the statute as a result of the election. "Courts never pass upon the constitutionality of statutes, except in cases wherein the party raising the question alleges that he is deprived of some right guaranteed by the Constitution, or some burden is imposed upon him in violation of its protective provisions." St. George v. Hardie, 147 N.C. 88 (97).
Affirmed on plaintiffs' appeal.
Error on defendants' appeal.