S. A. SCHLOSS, Jr., Florette Schloss Wile and Mary Jane Silverman, partners, trading as Schloss Poster Advertising Company
v.
W. H. JAMISON, Acting Superintendent of Building Inspection for the City of Charlotte and the City of Charlotte, a municipal corporation.
No. 249.
Supreme Court of North Carolina.
December 12, 1962.*593 John T. Morrisey, Sr., Charlotte, for defendant appellants.
Hunter M. Jones and James O. Cobb, Jr., Charlotte, for plaintiff appellees.
PARKER, Justice.
Defendants have only one assignment of error, and that is the court erred in signing the order granting a temporary injunction. Defendants have no exceptions to the findings of fact and to the conclusions of law.
Where no exceptions have been taken to the findings of fact, such findings are presumed to be supported by competent evidence and are binding on appeal. Milwaukee Insurance Co. v. McLean Trucking Co., 256 N.C. 721, 125 S.E.2d 25; Goldsboro v. R. R., 246 N.C. 101, 97 S.E.2d 486. However, the exception to the signing of the order presents the questions whether the facts found are sufficient to support the conclusions of law and the order granting a temporary injunction entered pursuant thereto, and whether there is error of law appearing on the face of the record proper. Logan v. Sprinkle, 256 N.C. 41, 123 S.E.2d 209; Webb v. Gaskins, 255 N.C. 281, 121 S.E.2d 564; Strong's Supplement to Vol. I of the N.C. Index, Appeal and Error, sec. 21, where numerous cases are cited.
The right of plaintiffs to test the challenged provision of the Charlotte city code by injunction is not controverted. There is ample authority for the suit. G. I. Surplus Store, Inc., v. Hunter, 257 N.C. 206, 125 S.E.2d 764; Clinard v. Winston-Salem, 217 N.C. 119, 6 S.E.2d 867, 126 A.L.R. 634; Loose-Wiles Biscuit Co. v. Sanford, 200 N.C. 467, 157 S.E. 432.
The injunctive relief here sought is not merely auxiliary to the principal relief demanded, but it is the relief, and a permanent injunction is demanded. In our opinion, the admissions in the answer of facts alleged in the complaint and the judge's detailed findings of fact are sufficient to show that plaintiffs have made out an apparent case that their property rights will suffer irreparable damage by the threatened enforcement of an alleged unconstitutional provision of the Charlotte city code, if the enforcement of this challenged provision of the city code is not restrained until the hearing on the merits, that the questions presented are grave, and that there is a reasonable apprehension that injury to plaintiffs will be certain and disastrous, if the application for a temporary injunction be denied and the final judgment be in their favor, while if the temporary restraining order be continued to the final hearing, the injury to defendants, even if the final judgment be in their favor, will be inconsiderable as compared with plaintiffs' damage if they should finally prevail. The judge correctly preserved the matter intact until the suit can be heard upon its merits. Little Pep Delmonico Restaurant, Inc. v. *594 Charlotte, 252 N.C. 324, 113 S.E.2d 422; Huskins v. Yancey Hospital, Inc., 238 N.C. 357, 78 S.E.2d 116 (Interlocutory injunctions); Clinard v. Winston-Salem, supra; Dixie Poster Advertising Co. v. Asheville, 189 N.C. 737, 128 S.E. 149; Marshall v. Commissioners, 89 N.C. 103; Ohio Oil Co. v. Conway, 279 U.S. 813, 49 S. Ct. 256, 73 L. Ed. 972.
The sole question presented to the judge on the show cause order was whether an interlocutory injunction should be granted until the hearing on the merits. Judge Copeland granted the interlocutory injunction upon a showing of equitable grounds for injunctive relief, and then went further and concluded as a matter of law that the challenged portion of the Charlotte city code "violates constitutional provisions pleaded in the complaint." Union Carbide Corp. v. Davis, 253 N.C. 324, 116 S.E.2d 792, quotes 16 C.J.S. Constitutional Law, § 95, as follows: "`The constitutionality of a statute will not be determined on the question being raised in a collateral proceeding, or on preliminary motions, or interlocutory order * * *.'"
This Court said in Patterson v. Hosiery Mills, 214 N.C. 806, 200 S.E. 906:
"The judge hearing the order to show cause why the injunction should not be continued to the hearing had no jurisdiction to hear and determine the controversy on the merits, and his findings of fact and conclusions of law were but instruments of decision in the matter before him. These findings and conclusions were not authoritative as `the law of the case' for any other purpose, and the judgment or order was not res adjudicata on the final hearing in the court below, and was not invested with that character by any action or non-action by this Court on appeal. North Carolina Practice and Procedure, McIntosh, page 993, section 876."
See Durham v. Public Service Co., 257 N.C. 546, 559, 126 S.E.2d 315, 324-325.
This Court said in Huskins v. Yancey Hospital, Inc., supra:
"7. The findings of fact and other proceedings of the judge who hears the application for an interlocutory injunction are not binding on the parties at the trial on the merits. Indeed these findings and proceedings are not proper matters for the consideration of the court or jury in passing on the issues determinable at the final hearing. Branch v. Board of Education [230 N.C. 505, 53 S.E.2d 455], supra; Grantham v. Nunn, 188 N.C. 239, 124 S.E. 309; Hudnell v. East Carolina Lumber Co., 180 N.C. 48, 103 S.E. 893."
In Union Carbide Corp. v. Davis, supra, the fourth headnote in our reports reads:
"In an action to restrain the violation of the North Carolina Fair Trade Act, it is error for the court upon the hearing of an order to show cause why the temporary restraining order theretofore issued should not be continued to the hearing, to dissolve the temporary order on the ground of the unconstitutionality of the statute, since constitutional questions were not before the court on the hearing and could be concluded only by a final judgment on the merits allowing or denying a permanent injunction."
The constitutionality of a statute or ordinance should not be decided in an interlocutory injunction on pleadings and an ex parte affidavit, but should be determined at the hearing on the merits, when all the facts can be shown. The judge's conclusion of law that the challenged section of the Charlotte city code "violates constitutional provisions pleaded in the complaint" is not res judicata on the final hearing on the merits, and is not, as well as the findings of fact, a proper matter for consideration of the court or jury in passing on the issues for decision at the hearing on the merits. It is to be understood that nothing herein stated shall be construed as the *595 expression of an opinion as to whether or not the challenged section of the Charlotte city code is constitutional or unconstitutional. This is a matter for the superior court on the final hearing on the merits, when all the evidence has been presented.
The admissions in the answer of facts alleged in the complaint and the unchallenged findings of fact support the conclusions of law and the order granting the temporary injunction entered pursuant thereto, and no error of law appears upon the face of the record proper. The temporary injunction issued below is
Affirmed.