joining in the dissent.
The majority opinion criticizes the issuance of a stay order by a single justice of this court without first conducting a hearing. The purpose of Supreme Court Rule 33(b) 1 is that a single justice can and should, when appropriate, issue stay orders without a hearing. Justices of this court have frequently exercised this power to preserve a status quo for the time being. In this case the power was exercised in order to immediately restore to full force and effect a validly enacted statute of the state regulating the sale of fireworks. The effect of the statute had been destroyed by the injunction issued by the trial court on what appeared to be an insufficient showing. If notice and hearing had been resorted to no action could have been taken until after the Fourth of July holidays, after which time most of the questions would have become moot. The same type emergency procedure and power is provided for in Civil Rule 652 covering the issuance of injunctions. It was under this emergency power that the trial judge first granted the plaintiffs a temporary restraining order against enforcement of the statute without notice to the state or the other defendants and without hearing.
The temporary restraining order and the temporary injunction were issued on the same record. Insofar as is pertinent both orders prevented the state from enforcing the insurance provisions of its fireworks statute; from requiring the obtaining of the sales permit provided for in the statute and from interfering with plaintiffs’ conduct of their business in any manner under color of the insurance requirements of the statute. The temporary injunction contained the additional provision that it was issued without prejudice to the rights of the state officials 3 to apply for dissolution of the injunction upon showing:
(1) That plaintiffs could in fact obtain insurance on the same terms as “it is now available to defendant Ace Fireworks Company”
or,
(2) That the allegations of the verified complaint and supporting affidavits with respect to the monopolistic and discriminatory effect of the statute were not true.4
Before the preliminary restraining order and the temporary injunction could be justifiably granted the plaintiffs herein must have satisfied the requirements of Civil Rule 65 which governs the granting of injunctions. That rule in pertinent part states:
No temporary restraining order shall be granted without notice to the adverse *934party unless it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss or damage will result to the applicant before notice can be served and a hearing had thereon. Every temporary restraining order granted without notice * * * shall define the injury and state why it is irreparable and why the order was granted without notice.5 (Emphasis supplied).
The requirement of this rule is that it must “clearly appear” from “specific facts” shown by affidavit or verified complaint that irreparable injury will result, etc. Broad allegations or conclusions are not sufficient. Because of this requirement none of the broad allegations and unsupported conclusions contained in plaintiffs’ verified complaint were sufficient to support its request for a preliminary restraining order or temporary injunction. While, as the state aptly pointed out, plaintiffs’ complaint might have been sufficient as a pleading, where the assumption would be that the various allegations would be supported at the trial by specific evidence, it was definitely not sufficient to support the requirement that “specific facts” be presented to the trial court before such extraordinary relief as a preliminary restraining order or temporary injunction could issue. This requirement was aptly stated by a California court in City and County of San Francisco v. Market Street Railway Co., 95 Cal.App.2d 648, 213 P.2d 780, 785 where it said:
as a matter of pleading are not competent to justify the issuance of an injunction.
None of the broad allegations contained in plaintiffs’ complaint advised the court any further than that the plaintiffs charged a conspiracy which created a monopoly and that the defendants were the conspirators. As the California court said in City and County of San Francisco v. Market Street Railway Co., supra:
Unless the statement in the nature of a conclusion is supported by the facts or circumstances on which it rests, it is insufficient to sustain an application for injunction.
The matter presented in support of the claimed conspiracy and the resulting monopoly was:
The plaintiff Norene’s bare statement that in 1968 Ace entered the Alaska market for the first time and attempted to obtain some of their fireworks business; that when plaintiff’s customers remained loyal to plaintiff, then Ace and its “co-conspirators” Ace, Empire, and Tobey “and others to plaintiffs presently unknown, resorted to the insurance legislation scheme * * * and, by means of fraudulent misrepresentations made to key legislators, during the frantic closing hours of the 1969 session of the Alaska Legislature,” caused the fireworks legislation to be enacted; that in doing so it was fraudulently represented to the legislators that the legislation was sponsored and desired by Alaskan suppliers and that the insurance requirements were reasonable and easily complied with; that actually plaintiffs “were never properly consulted” by the legislature and did not know of the pending legislation until after it was *935passed;6 that the legislation was prepared by the conspirators for the express purpose of working the “insurance-legislation monopoly gimmick” used heretofore in other areas so that the defendants could engage “under the color of state law, in unlawful monopolistic practices and to defraud the Alaskan publicthat “as a direct result of the misrepresentations and unlawful acts and conspiracy referred to above, certain responsible officials of the state of. Alaska-were induced and misled to adopt, without proper or reasonable cause, in a manner not consistent with law, and based upon an invalid enactment of the legislature,” certain emergency regulations which, “together with the legislation herein complained of, deny to plaintiffs * * * the right to engage in their usual, normal and lawful business, without first complying with unreasonable, discriminatory and impossible insurance requirements;” that plaintiffs attempted to obtain the insurance on the general market unsuccessfully because no “responsible and ethical” insurance company would provide the coverage, because of the “unreasonable and deceptive” wording of the statute; that the defendants Empire and Tobey “did refuse to issue such policies to plaintiffs and will insure, exclusively, only their co-conspirators, defendants Ace and/or Ace Novelty, for economic reasons of their own” (emphasis supplied) ; that as a result the named state officials (The Commissioner of Public Safety, The Fire Marshal, and Assistant Fire Marshal) have been induced to issue “ * * * unwittingly and in good faith, but nevertheless contrary to law and against public policy, certain exclusive and monopolistic fireworks permits” to defendants; that the insurance requirements of the state “are unreasonable, impossible of performance, discriminatory, confiscatory and in excess of the police power of the State of Alaska, for the reasons stated;” that the statute is “contrary to public policy and in violation of the antitrust laws of the United States, by creating an unlawful monopoly, encouraging unfair competition and encouraging the practice of fraud and deceit upon the public of the State of Alaska” and accordingly the statute is “null and void and without any force and effect.” The affidavit of Von Baxter, managing officer of J. C. Morris Agency was submitted which stated that none of the standard markets of his company nor Lloyd’s of London would provide insurance of the type required because of the broad scope of coverage and uncertainty of risk. The affidavit of Joseph Bagwill was submitted stating that unless the court issued a restraining order “without taking time out for notice and hearing thereon” that plaintiffs would be irreparably damaged because “prevented from making the necessary preparation for the sale of fireworks for the Fourth of July celebration” and that he had been advised by counsel that the fireworks statute was unconstitutional and denied him the equal protection of the laws.
The essence of a conspiracy is an agreement together with an overt act. The complaint alleges that the defendants conspired to work the “insurance-legislation monopoly gimmick.” Not one specific fact or circumstance was stated to show that the defendants acted in concert or pursuant to agreement. No specific statement of fact supported the broad allegation that the defendants actually prepared the legislation; nothing in the entire record supports the claim that the defendants’ purported actions were based on “misrepresentations and unlawful acts” and the “conspiracy referred to above.” The broad allegations would infer that some details of the “conspiracy,” the “misrepresentations,” the “insurance-legislation monopoly gimmick” were known to the plaintiffs. If so, enough of the details in the form of “specific facts” should have been stated so as to make out a prima facie showing of conspiracy and monopoly. Names, dates, places, and other particular facts are entirely missing from plaintiffs’ showing with respect to all of the broad al*936legations contained in the complaint and in the affidavits. Nothing factual supports the bare statement that Ace and Empire and Tobey conspired and that Empire refused to insure plaintiff. Facts and circumstances sufficient to state a prima facie case were totally absent. In fact, it would appear from plaintiffs’ own “showing” that Empire’s reason for refusing to insure plaintiff was “for economic reasons of their own” and not because of a conspiracy to create a monopoly.
The affidavit of Baxter contained the only specific facts before the court: that he had been unsuccessful in procuring the required insurance from the standard markets of his firm or from Lloyd’s, but no dates or firm names were mentioned. This affidavit by no means constituted a prima facie showing that the insurance was not procurable on the market as a whole. The broad inference of Baxter’s affidavit was refuted by the affidavit of Senator Phillips that the insurance was available, but “only at prohibitive rates.”
The affidavit of the President of the Senate that the legislation was hasty and ill advised is only the opinion of 1 of 60 legislators involved in its passage, is not supported by any facts and fails utterly to connect the defendants or any specific person with the alleged conspiracy to mislead the legislators and create a monopoly.
In spite of the absence of any specific showing the trial court found that the plaintiffs had tried to obtain insurance, but were unable to because it was not available except through Empire which would not sell it to plaintiffs or any person other than Ace “on the same terms and conditions.” No facts whatever concerning a request and refusal or concerning any terms and conditions were contained in plaintiffs’ complaint or in an affidavit.
The trial court found that the statute was unconstitutional because it was discriminatory and confiscatory. The showing was that it actually was not discriminatory but that it applied to all vendors of fireworks alike and that Ace had in fact procured insurance that satisfied the defendant state officials.
Regulations issued pursuant to the statute were also found to be discriminatory and confiscatory although no regulation was introduced into or even quoted in the record. The record contains no information of any nature concerning any of the regulations which were supposedly issued.
The only showing in support of the finding that the statute was prima facie unconstitutional appears to be plaintiffs’ repeated allegations that it was “contrary to public policy,” “unreasonable,” “impossible of performance,” “in excess of the police power,” etc. Such allegations are not facts and circumstances and do not enlighten the court. They provide nothing for the defendants to meet in attempting to oppose the issuance of a restraining order or injunction.
Where the subject regulated, such as fireworks in the case before us, is properly within the scope of the police power of the state, a charge of discrimination, or lack of reasonable relation between the object of the act and the means employed, must be supported by facts in the record sufficient to overcome the. general presumption of constitutionality of the act. See O’Gorman and Young, Inc. v. Hartford Fire Insurance Co. of Hartford, 282 U.S. 251, 257, 51 S.Ct. 130, 75 L.Ed. 324, 327 (1930).
The basic principle which underlies the entire field of legal concepts pertaining to the validity of legislation is that by enactment of legislation a constitutional measure is presumed to be created. In every case where a question is raised as to the constitutionality of an act, the court employs this doctrine in scrutinizing the terms of the law. 16 Am.Jur.2d, Constitutional Law § 137, at 336.
A footnote to the above citation states that “the principle is one from which there is no dissent in any jurisdiction”, followed by citations from most of the states of the United States.
The trial court’s finding that plaintiffs would be irreparably damaged was based upon no allegation more definite than those *937recited in this opinion plus plaintiffs’ statements to the effect that they needed the time between June 23 and July 1 to make distribution to their dealers and that they would he put out of business if the court did not act. The showing- of irreparable injury was fatally deficient under the holding of this court in Miller v. Atkinson.7 The majority opinion states:
In order for us to reach the conclusion that the injunction was proper, besides finding the element of irreparable harm, we must decide whether respondents’ allegations, if proved at trial, would entitle them to the relief sought.
This is not the proper test. If it were there would be no need for Civil Rule 65 and its requirement that there must be a clear showing, under oath, of immediate and irreparable injury by specific facts. Under the test adopted by the majority any type of notice pleading capable of being “proved at trial, would entitle them to the relief sought.”
The majority mentions the fact that the state made “no showing at all as to what interest would be served by any of the provisions of this statute, other than the claims that all laws are to protect the public.” No other claim needed to be made. The state was not required to respond to plaintiffs’ broad unsupported allegations and show that the legislature was justified in enacting the legislation. It was conceded to be a validly enacted statute and to be an exercise of the state’s police power. The resulting presumption of validity was in no way rebutted by any of plaintiffs’ allegations. Plaintiffs charged that the statute was “unreasonable,” “confiscatory,” “in excess of the police power,” etc. without making any showing of how or why and specifically how it affected the plaintiffs in their business.
The restraining order and injunction should not have been granted. The stay was granted so that the state could prosecute a writ of review. Since the state received most of the relief it requested and the issues are for the most part moot, the state is under no obligation to prosecute the writ, in my opinion.
. Supreme Ct. It. 33(b) states:
Proceedings in tlie superior court or the enforcement of any order or decision thereof shall not he stayed by the filing of a petition for review or of an original application for relief unless the superior court or this court or a justice thereof shall so order. Applications for stay to this court or a justice thereof normally will not be entertained unless application has first been made to the superior court and has been denied.
. Quoted in part, infra page 933.
. The Fire Marshal, Assistant Fire Marshal, Director, Division of Insurance, and Attorney General.
. Those two conditions are unprecedented in that, as a condition precedent to restoring to the state the right to enforce its validity enacted statute, it must prove to the court that the plaintiffs could obtain insurance on the same terms as it was available to Ace and disprove all of the broad allegations concerning monopoly and discrimination, which had not been established prima facie by facts and circumstances in plaintiffs’ application.
*934Where the complaint is the sole basis of the order, and the complaint is treated as an affidavit, its sufficiency must be tested by the same rules applicable to oral testimony. Conclusions that might stand
. The showing which must be made in support of the issuance of a temporary injunction is identical to that which must be made in support, of a temporary restraining order. The applicant has the burden of showing his right to injunctive relief by evidence and that irreparable injury will result if the injunction is not granted and the trial court must make And-ings of “fact” based on the “evidence” presented in support of the application. The only difference is that the temporary restraining order is granted without notice or hearing. See 7 J. Moore, Federal Practice ¶ 65.04[1] at 1629-1630 (2d. ed. 1968) and cases cited in Footnotes 14 and 16.
. At the hearing counsel for plaintiffs admitted that the plaintiff Norene “received a copy of the bill, gave it to his attorney who checked in Juneau and was told the bill had no chance of passage and promptly forgot about it.”
. 365 P.2d 550, 552 (Alaska 1961).