State v. Carolina-Virginia Racing Ass'n

80 S.E.2d 638 (1954)

239 N.C. 591

STATE ex rel. SUMMRELL v. CAROLINA-VIRGINIA RACING ASS'N, Inc. et al.

No. 25.

Supreme Court of North Carolina.

March 17, 1954.

*640 Frank B. Aycock, Jr., Elizabeth City, for plaintiff, appellant.

Wilton F. Walker, Jr., Currituck, John G. Dawson, Kinston, Lucas, Rand & Rose, Wilson, and John B. McMullan, Elizabeth City, for defendants, appellees.

BOBBITT, Justice.

Where a resident and citizen seeks to enjoin public officials from putting into effect the provisions of a statute enacted by the General Assembly on the ground that the statute is unconstitutional and therefore void, it is held that he is not entitled to injunctive relief in the absence of allegation and proof that he will suffer direct injury, such as a deprivation of a constitutionally guaranteed personal right or an invasion of his property rights. In the absence of such allegation and proof the Court will not pass on the constitutionality of the statute. Wood v. Braswell, 192 N.C. 588, 135 S.E. 529; Newman v. Watkins, 208 N. C. 675, 182 S.E. 453.

G.S. § 19-1 declares that an establishment used for the purpose of gambling constitutes a nuisance. Its constitutionality as a valid exercise of police power has been tested and upheld. Carpenter v. Boyles, 213 N.C. 432, 196 S.E. 850; Barker v. Palmer, 217 N.C. 519, 8 S.E.2d 610. And it is specifically provided by G.S. § 19-2 that "any citizen of the county may maintain civil action in the name of the State of North Carolina upon the relation of such * * * citizen, to perpetually enjoin said nuisance, the person or persons conducting or maintaining *641 the same, and the owner or agent of the building or ground upon which said nuisance exists." State ex rel. Dickey v. Alverson, 225 N.C. 29, 33 S.E.2d 135; Dare County v. Mater, 235 N.C. 179, 69 S.E.2d 244.

Thus, the plaintiff's action is not grounded on general equitable principles but on the express authority of G.S. § 19-1 et seq., and he is entitled to injunctive relief if he can prove his allegations that the defendant is conducting and maintaining a gambling establishment. The undisputed facts constitute such proof unless, as alleged by the defendant and intervenor, these general statutes are inapplicable to the defendant's operations in Currituck County because the defendant's operations are lawful under Ch. 541, 1949 Session Laws, and the franchise granted to defendant by the Commission in pursuance thereof. In short, the defendant's operations are lawful if the 1949 Act is a constitutional exercise of legislative power; otherwise, the defendant's operations are unlawful and subject to abatement as a nuisance under G.S. § 19-1 et seq. The ultimate status of the defendant's operations will be determined when the constitutional question is decided. Is this action appropriate for the decision of the constitutional question? Judge Morris ruled that it was not and dismissed the action on that ground, relying upon Amick v. Lancaster, 228 N.C. 157, 44 S.E.2d 733.

In Amick v. Lancaster, supra, the action was brought under G.S. § 19-1 et seq. The plaintiff sought to enjoin as a nuisance the operation of a liquor store by "`The Town of Louisburg Board of Alcoholic Control'" pursuant to Ch. 862, 1947 Session Laws. The court held that since the alcoholic control board was acting "under color of legislative authority" the remedy by action under G.S. § 19-1 et seq., "seems inappropriate." It is to be noted that the plaintiff in Amick v. Lancaster, supra, sought to enjoin the operations of a governmental board acting "under color of legislative authority". Whether the rationale of the decision would apply equally to a private person, firm, association or corporation is open to serious question. Be that as it may, the 1949 Currituck Act, Ch. 541, 1949 Session Laws, being unconstitutional and therefore void as declared in State v. Felton, N.C., 80 S.E.2d 625, there is error in the judgment below dismissing the action; and the cause is remanded for further proceedings.

Error and remanded.