CLARKSON, J., dissenting. This is an equitable action, wherein the plaintiffs sought to enjoin the defendants from holding the election and putting into effect the other provisions of chapter 493 of the Public Laws of 1935, upon the ground that said statute is unconstitutional and void.
The plaintiffs base their principal contentions upon their allegations that some of them are residents and taxpayers in Vance County and that others of them are residents and taxpayers in other counties in the State, and that they are informed and believe that said statute is unconstitutional for that its provision for financing the operation of the statute from the general county funds permits the incurring of debts and the pledging of the faith of the county without a bill for that purpose having *Page 676 been passed on three several readings on three different days, and for that the statute is a local, special act relating to health, abatement of nuisances, and quality of liquors for human consumption, and regulating labor and trade, and the said statute was enacted by a partial repeal of the general law, in violation of Art. II, sections 14 and 29, respectively, of the Constitution of North Carolina; and for that said statute grants privileges and immunities to some which it withholds from others, and thereby denies equal protection of the law to those within the jurisdiction of the State, in violation of the 14th Amendment to the Constitution of the United States.
The judge of the Superior Court denied the injunctive relief sought, to which ruling the plaintiffs excepted and appealed to the Supreme Court, assigning errors. A perusal of the statute which the plaintiffs seek to have declared unconstitutional discloses that it provides for an election to be held to determine whether a statute which carries two major provisions shall become the law in Vance County, these provisions being, first, to repeal the general law prohibiting traffic in alcoholic beverages as it relates to said county and to establish a method for its sale therein 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 prescribing punishment therefor.
The plaintiffs nowhere allege that they will suffer any direct injury or that there will be any invasion of their property rights if the election is held, or if the statute is put into effect as a result of the election, and it is well settled in this jurisdiction that allegations to such effect must be made by those who would seek to have the courts declare an act of the Legislature in contravention of the organic law. Only those who can allege and prove that there will be irreparable damage to them by the enforcement of a statute are privileged to ask the judicial department to exercise its high prerogative of setting at naught a solemn act of its coordinate legislative department. Moore v. Bell, 191 N.C. 305; Wood v.Braswell, 192 N.C. 588; Yarborough v. N.C. Park Commission, 196 N.C. 284. "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). "The party who invokes the *Page 677 power (of a court to declare an act of the Legislature unconstitutional) must be able to show, not only that the statute is invalid, but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally." Willoughby on the Constitution of the United States (2d Ed.), sec. 13, p. 20, quotingMassachusetts v. Mellon, 202 U.S. 447.
The allegations that the plaintiffs are residents and taxpayers in North Carolina, some in Vance and some in other counties, and that the putting into operation of the provisions of the statute may be financed from the general funds of Vance County do not amount to an allegation of direct injury or of an invasion of property rights of the plaintiffs, since, if this expense is to be met from the general funds already collected, the plaintiffs will not be called upon to pay taxes for this purpose, and if such expense is to be met from funds yet to be raised by taxation, which is not yet apparent, the plaintiffs have their remedy at law.
The allegations of discriminations cannot avail the plaintiffs, since they have an adequate remedy at law for any and alleged discriminatory features of the statute. Should the plaintiffs desire to do those things made unlawful by the terms of the statute they can do so, and if indicted for so doing they may then plead the invalidity of the statute, and if their contention as to its unconstitutionality is well founded, the indictment will fail. Connor, J., for the Court, in Moore v. Bell, supra, writes: "The validity of a statute enacted by the General Assembly of North Carolina, declaring certain acts therein defined to be unlawful, and imposing punishment therefor, as crimes which do not affect property or property rights, and which do not expose to oppression or vexatious litigation one who denies the power of the General Assembly, under the Constitution of the State to enact such statute, in the event that he shall violate its provisions, may not be determined in an action to restrain and enjoin a public officer who is required by the statute to enforce it. The invalidity of a statute, upon the ground that it is in violation of the Constitution of the State, is a good defense upon a prosecution in the courts for a violation of its provisions. Upon such prosecution his plea may be heard; its validity will then be determined by the courts in the exercise of their jurisdiction to see that no person is `taken, imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land.'"
If the plaintiffs are aggrieved by the acts of others and desire to prevent them from doing those things which the statute permits, but which were prohibited under the former law which the statute repeals, they *Page 678 have an adequate remedy at law by having indicted and prosecuted those persons doing such things, and if the later statute is unconstitutional it will not avail as a defense. Provision for such prosecution by the State, at the instance of an individual, to prevent an apprehended crime against his person or property is contemplated by Consolidated Statutes, sec. 395 (2), and an adequate remedy at law is thereby furnished.
In speaking to the question as to the exercise by this Court of the authority vested in it to declare acts of the Legislature void when they are in conflict with the Constitution, Stacy, C. J., in a concurring opinion in Wood v. Braswell, supra, says: "Such authority in inherent in the judicial power and it is obligatory on the courts to declare the law in all cases, when properly presented. But it is only in cases calling for the exercise of judicial power that the courts may render harmless invalid acts of the Legislature; hence, for this reason, they never anticipate questions of constitutional law in advance of the necessity of deciding them; nor do they venture advisory opinions on constitutional questions." See, also,Person v. Doughton, 186 N.C. 723 (725), and cases there cited.
This case is not like Griffith v. Board of Education, 183 N.C. 408, where it was said that ". . . an injunction will issue to restrain the holding of an election where there is no authority for calling it, and where the holding of such an election would result in a waste of public funds," cited and relied upon by plaintiffs; for here the General Assembly has authorized the holding of the election to ascertain the sense of the people upon a question of public policy, and thus to determine whether the act shall become operative in the territory affected.
The whole case resolves itself to this: The plaintiffs sought in a court of equity to restrain an election. It was freely conceded upon the argument that unless the statute in question is unconstitutional, the plaintiffs were not entitled to the relief sought. It must likewise be conceded, we think, that unless irreparable injury would result to the plaintiffs from the mere holding of the election to determine whether the statute shall become operative, their remedy is not presently by injunction.
We hold, in the absence of any allegation or finding of facts that the plaintiffs will be irreparably damaged or suffer any invasion of their property rights by a compliance with the statute, that the question of the constitutionality of chapter 493 of the Public Laws of 1935 was not properly before the court, and that his Honor correctly denied the injunctive relief prayed for in the complaint.
Affirmed.