concurring. This action was brought to enjoin the defendant from enforcing certain ordinances regulating the liquor traffic within its corpprate limits, and from revoking and cancelling the plaintiff’s license to sell liquor, and to declare the said ordinances null and void upon the ground that they impose unreasonable, vexatious and oppressive restrictions upon the business of selling liquors by those who are licensed to do so by the town authorities. The motion for the injunction Avas denied and the plaintiff appealed. It is sufficient, I think, for the purpose of deciding the case in the view I take of it, to state that it is provided by the seA’-eral ordinances in question that the business of retailing liquors shall be conducted under certain rules and regulations specified in the ordinances, and that a failure to comply with the said rules and regulations or the violation of any of the ordinances subjects the offender, upon conviction, to a fine of fifty dollars for each day on Avhich a violation occurs. It is not necessary to set forth the terms of the several ordinances more particularly than I have done, as the Court, in my opinion, is not at liberty to consider the-general question of their validity, because of an objection of the defendant in limine, which is fatal to the plaintiff’s action, namely, that if we concede for the sake of the argument the ordinances are invalid, the plaintiff is not, upon the facts stated in his affidavit, entitled to any relief by injunction.
The‘plaintiff, upon affidavit, obtained a restraining order and an order to show cause why an injunction to the hearing should not be issued, and on the return day of the order the motion for a continuance of the injunction Avas heard upon the affidavits, as is stated in the order, no complaint having been filed, though it is recited in the original restraining order that it Avas granted upon the complaint and affidaAÚts. Regularly the motion to continue the injunction *380should not have been beard until the complaint was filed, and it may be that the law contemplates in a case like this one that the complaint shall be filed in the beginning, so that the Court may see clearly and distinctly that the plaintiff is entitled to the relief demanded, “where it consists in restraining the commission or continuance of an act” (The Code,, section 338) ; but however this may be, it would seem to be good practice to require the complaint to be filed when the motion to continue is heard, for it is the allegations of the complaint, and not of affidavits merely, that ascertain and determine what is the cause of action out of which arises the right or equity that requires protection pending the litigation. But I will consider the case without reference to the question of pleading and practice, as I desire to state my views upon the legal merits involved.
There are two objections to the plaintiff’s right to maintain this action, first, the courts cannot enjoin the enforcement of the criminal law or of municipal ordinances imposing fines or penalties, and second, the defendant, under its charter, had the power “to prevent, control, tax, license or regulate the sale of spirituous, vinous or malt liquors,” and the defendant having applied for and accepted his license with full knowledge of the terms of the ordinances is not in a position to question their validity, but must exercise the right and privilege of selling conferred by that license in strict compliance with the conditions and restrictions imposed.
In regard to the first objection, we must bear in mind that if the Court should issue an injunction against the institution of a criminal prosecution, it would not only interfere with the due administration of the criminal law, which is of the first importance in any well-ordered system of government, but it would have to restrain action by the State in whose sovereign name and capacity all criminal *381cases are commenced and prosecuted, and tbe State is not even a party to this action and her rights cannot be prejudiced without notice and a hearing, even if we could entertain for a moment with any seriousness the proposition that a court of equity can interfere by injunction with the administration of the criminal law. The violation of a town ordinance is made by statute a misdemeanor. The Code, section 3820. If it is contended that the ordinance imposes a penalty for each violation of it, and that a court of equity will interfere on behalf of the plaintiff to prevent vexatious litigation and a multiplicity of suits, one answer, and a conclusive one, is that a court of equity will never assume jurisdiction in such a case until the right of the complaining party or, in this particular case, the validity of the ordinance has been first determined in an action at law.
The true principle governing such a case is well stated in Wallace v. Society, 67 N. Y., 28: “The general rule is that the Court will not restrain a prosecution at law when the question is the same at law and in equity. An exception exists where an injunction is necessary to protect a defendant from oppressive and vexatious litigation. But the Court acts in such cases by granting an injunction only after the controverted right has been determined in favor of the defendant in a previous action. On this ground the Chancellor in West v. Mayor, 10 Paige, 539, dissolved a temporary injunction restraining the defendant from prosecuting suits against the complainant for violation of a corporation ordinance claimed to be invalid. The unconstitutionality of the Act of 1872 would be a perfect defense to a prosecution for the penalties given by it, and the question as to the constitutionality of the act has not been determined. ' It would doubtless be convenient for the plaintiff to have the judgment of the Court upon the constitutionality of the act before subjecting himself to liability *382for accumulated penalties. But this is not a ground for equitable interference, and to make it a ground of jurisdiction in sucli cases would, in the general result, encourage rather than restrain litigation.” Further, the Court thus states the law: “The question as to the validity of a corporation ordinance does not properly belong to this Court for decision, where the complainants, as in this" case, have a perfect defense at law if the ordinances are invalid, or if they do not render the complainants, or those in their employ, liable for the penalty. And it would be an usurpation of jurisdiction by this Court if it should draw to itself the settlement of such questions when their decision was not necessary in the discharge of the legitimate duties of the Court. * * * This Court would not grant an injunction to protect him against the multiplicity of suits until his right to such protection had been established by a successful defense at law in some of the suits.” In 16 Enc. of Law, p. 310, we find the following sirccinct statement of the principle: “It is a well-settled rule, both in England and America, that a court of equity has no jurisdiction to interfere by injunction to restrain a criminal prosecution, whether the prosecution be for violation of statutes or for an infraction of municipal ordinances. The rule applies whether the prosecution is by indictment or by summary process, and to the prosecutions which are merely threatened or anticipated, as well as those which have already been commenced. So it is not within the power of the parties to waive the question relating to the jurisdiction of the Court and to compel it to try the cause. If the prosecution is under an ordinance, no ground for enjoining it is constituted by the fact that the ordinance is void or that the party seeking the injunction has not committed a violation of the ordinance, or that the complainant in the prosecution under the ordinance states no cause of action.” *383In Burnett v. Craig, 30 Ala., 138, the plaintiff sought to enjoin the enforcement of an ordinance against the sale of liquor, and the Court said: “We have found no case, however, where chancery has restrained a simple trespass or succession of trespasses on either the person or personal goods. The utmost extension of the principle which has come under our observation embraces only trespasses to realty, where the remedial agency is shown to be necessary to prevent multiplicity of suits or to avert irreparable mischief. * * * The judgment and sentences of the town council, of which the appellant complains, were quasi criminal proceedings. A bill in chancery to restrain a malicious or unfounded prosecution is certainly of novel impression. * * * We have not been able to find any principle or adjudged case which justifies an injunction to stay a prosecution, either criminal or quasi criminal, or to restrain a trespass to the person or personal property. We think such a precedent would be an alarming stretch of equity jurisdiction. In considering this case, simply on the equity of the bill, we have necessarily regarded its averments as true. It is not intqnded by this to intimate an opinion on the validity or invalidity of the ordinance or of the fines imposed on the appellant; they will be considered when properly presented.” In Moses v. Mayor, 52 Ala., 198, it is said: “Courts of equity will not interfere to stay proceedings in criminal matters, or in any cases not strictly of a civil nature. They will not grant an injunction to stay proceedings on a mandamus, or an indictment, or an information, or a writ of prohibition. The courts of law have complete jurisdiction to punish the commission of crimes, and can interpose to prevent their commission by imprisoning the offender or binding him to keep the peace. But courts of equity have no jurisdiction over such matters; at least a court of equity cannot entertain a bill on this *384ground alone. * * * A bill in chancery to restrain a malicious or unfounded prosecution is certainly of novel impression, and there is neither principle nor authority to support it. * * * Municipal authorities would be paralyzed in discharging the public duties entrusted to them if every offender against the ordinances they have proclaimed could by injunction arrest them, or could by multiplying his offenses invoke the inference of a court of equity. * * * The counsel for the appellant have sought to withdraw the case presented in the bill from the operation of this general principle and the authorities by which it is supported, upon the ground that the interference of a court of equity is necessary in this case for the prevention of vexatious litigation and of a multiplicity of suits. It could well be said in answer, the litigation and multiplicity of suits apprehended are criminal in their character and without the jurisdiction of the Court.” And to the same effect are the following authorities: Devron v. First Municipality, 4 La. Ann., 11; Beach on Injunction, sec. 520; Eldridge v. Hill, 2 Johns. Ch., 281; Field v. Western Springs, 181 Ill., 186; 1 Spelling Inj. & Extr. Rem., sec. 694. In Burch v. Cavanagh, 12 Abb. Pr. Rep., 410, it was held that an injunction will not lie to restrain an illegal arrest, and that several persons who were threatened with arrest could not unite in the same action to prevent it; and further, that the insolvency of a person who threatens to make the arrest cannot be ground for an injunction to restrain him. The case of Hottinger v. New Orleans, 42 La. Ann., 629, in its essential facts, is very much like the case at bar. The plaintiff alleged that the defendant, by the attempted enforcement of an illegal and void municipal ordinance, was interfering with her dairy business, and by its unauthorized acts was injuring her property and impairing the value thereof. The Court, after stating that as a court of equity *385it had no power by injunction to prevent a municipal corporation from enforcing penal ordinances in the interest of public order and health, said: “The ordinance was enacted in pursuance of the police power vested in the city, whether rightfully or wrongfully is not to be determined in this suit. It was a police regulation in the interest of public health, with a penalty for its violation. The pecuniary loss in the enforcement of the ordinance cannot therefore be considered in determining the question of jurisdiction. The enforcement of the ordinance vested by the Constitution and law of the State upon the Recorder’s Court of the city of New Orleans. If the ordinance is unconstitutional, as alleged, the plaintiff can suffer no injury, as she has her remedy and can urge her defense in the Recorder’s Court. Failing there, she has her remedy by appeal to this Court.” In Cohen v. Commissioners, 77 N. C., 3, this Court said: “If the defendants have an unlawful ordinance, and have arrested and fined the plaintiffs, as they allege, the plaintiffs have complete redress in an action for damages. And as often as the arrest may be repeated they have the like redress; but we are aware of no principle or precedent for the interposition of a court of equity in such cases.” The principle has been expressly affirmed in Wardens v. Washington, 109 N. C., 21; Scott v. Smith, 121 N. C., 94, and recognized and applied in Vickers v. Durham, 132 N. C., 880; Busbee v. Lewis, 85 N. C., 332; Busbee v. Macy, 85 N. C., 329, and Pearson v. Boyden, 86 N. C., 585. While, as we have said, the fact that the police officers of the town are insolvent does not take this case out of the general rule, it may be added that process can be issued by the mayor, who is made by statute a magistrate and custodian of the peace, with a jurisdiction of a justice of the peace, to any lawful officer,- such as a sheriff, town constable, etc. The Code, sections 20Y9, 3808,'3811 and 3818; State *386v. Cainan, 94 N. C., 880, and tbe execution of sucb process is not confined to tbe policemen of tbe town. But if an injunction is tbe proper remedy, tbe plaintiff must fail in tbis suit, as bis case presents no equity to be protected by tbe restraining process of tbe Court. Tbe ordinances in question were adopted by tbe defendant before tbe plaintiff applied for and obtained bis license to retail liquor, and be knew of tbeir existence and accepted tbe license subject to tbe conditions and regulations imposed by them. Under these circumstances, what moral or legal right has be to question tbeir validity? Tbe Legislature may prohibit or restrict tbe sale of liquor in any manner its wisdom or discretion may dictate, and no one has any natural or absolute right to sell liquor. If be sells at all it must be on sucb terms as tbe law may impose. Tbe law in tbis respect is thus stated in Crowley v. Christinsen, 137 U. S., 91: “Tbe police power of tbe State is fully competent to regulate tbe business, to mitigate its evils, or to suppress it entirely. There is no inherent right in a citizen to thus sell intoxicating liquor by retail; it is not a privilege of a citizen of the State or of a citizen of tbe United States. As it is a ■ business attended with danger to tbe community, it may, as already said, be entirely prohibited or be permitted under sucb conditions as will limit to tbe utmost its evils. Tbe manner and extent of regulation rest in tbe discretion of tbe governing authorities.” Tbe same doctrine is thus stated by tbis Court in Bailey v. Raleigh, 130 N. C., 214, as follows: “It (the Legislature) bad tbe right to have absolutely prohibited tbe intestate, or any one else, from selling liquor within one mile of tbe corporate limits of tbe city. This it did unless tbe party selling obtained a license or permission to do so from tbe city authorities. Instead of tbis right to do so with tbe permission of the city authorities being a restriction, its effect was to relax tbe probibi-*387tory rule and to grant him a right be did not otherwise have. The law allowing him to get a license from the city took nothing from him and imposed no duty upon him; it only gave him an option, a right to take the license and pay the tax, or not. Plow he was damaged by having this privilege, this option, which he chose to accept, we are unable to see.” When, therefore, the law conferred upon the defendant the power to “prevent, regulate, control, tax or license the sale of spirituous, vinous and malt liquors,” as they had the power to prevent or, what is the same thing, to prohibit the sale, this necessarily implied that they could grant license upon any terms or conditions they saw fit, in the exercise of their judgment or discretion, to impose or to annex to the grant. “A grant of entire control, or of power to suppress and restrain, would enable the corporation to adopt any mode of regulation within the limit of those powers, license included.” Plorr and Bemis Mun. Pol. Ord., p. 250. “Regulating a thing is the prohibition of it, except in accordance with certain rules. This act prohibits the sale and manufacture of intoxicating liquor, except under- certain regulations therein provided.” Cantine v. Tillman, 54 Fed. Rep., 975.
I confess my inability to understand how a person, who, upon his own application, has received a license in which is stated that it was issued “subject to all ordinances of the city of Washington now in force and hereafter enacted, and upon the condition that a violation of any ordinance of the city shall work a forfeiture of said license,” can continue to enjoy the right and privilege conferred by the license and repudiate the conditions upon which it was granted. He must take the burden with the benefit or privilege he has sought and accepted. If the plaintiff is about to suffer any injury to his property, it is one which he has voluntarily and deliberately brought upon himself by accepting a license *388so worded, and be lias no good reason to complain. He is the author of his own misfortunes, if any are about to overtake him, and I am not aware of any principle of law or morals upon which he can justly appeal to a court of equity for relief.
Having concluded that the Court has no jurisdiction to grant the relief demanded, it is unnecessary to consider the question argued by counsel as to the reasonableness and validity of the ordinances. That matter is not before the Court, and anything I might say would be the expression of my individual opinion upon an abstract and hypothetical question. I agree with the majority of the Court that the ruling below by which the injunction was dissolved was right.
Clare, O. J., and CoNNOR, J., concur with Walker, J., that an injunction does not lie against the enforcement of a municipal ordinance the violation of which is a misdemeanor, for the reason that the State cannot be enjoined from the execution of its criminal laws, and concurs with MoNtgomery, J., that the ordinances are not void.