D & W, Inc. v. City of Charlotte, 286

Citation268 N.C. 577,151 S.E.2d 241
Decision Date30 November 1966
Docket NumberNo. 286,286
CourtUnited States State Supreme Court of North Carolina
PartiesD & W, INC., t/a Merry Go-Go Round, on behalf of itself, and Diab, Inc., t/a Pecan Grove Supper Club, and such other citizens and plaintiffs of Mecklenburg County, North Carolina, affected by the Turlington Act and the Alcoholic Beverage Control Act of North Carolina v. The CITY OF CHARLOTTE et al.

Plumides & Plumides, Jerry W. Whitley, Charlotte, for plaintiff appellees.

T. W. Bruton, Atty. Gen., James F. Bullock, Asst. Atty. Gen., for defendant appellants.

John H. Small, Charlotte, amicus curiae.

SHARP, Justice.

Defendants' first assignment of error challenges the admissibility of the affidavit of Mr. Frank Snepp, a member of the Legislature of 1959, to show the legislative purpose in enacting Chapter 745, Session Laws of 1959, which amended G.S. § 18--78.1. This evidence was incompetent. More than a hundred years ago this Court held that 'no evidence as to the motives of the Legislature can be heard to give operation to, or to take it from their acts. * * *' Drake v. Drake, 15 N.C. 110, 117. The meaning of a statute and the intention of the legislature which passed it, cannot be shown by the testimony of a member of the legislature; it 'must be drawn from the construction of the act itself.' Goins v. Trustees Indian Training School, 169 N.C. 736, 739, 86 S.E. 629, 631. In construing a statute, Merrimon, J., laid down the rule in State v. Partlow, 91 N.C. 550, 552:

'Its meaning in respect to what it has reference and the objects its embraces, as well as in other respects, is to be ascertained by appropriate means and Indicia, such as the purposes appearing from the statute taken as a whole, the phraseology, the words ordinary or technical, the law as it prevailed before the statute, the mischief to be remedied, the statute, the end to be accomplished, statutes In pari materia, the preamble, the title, and other like means. But the meaning must be ascertained from the statute itself, and the means and signs to which, as appears upon its face, it has reference. It cannot be proved by a member of the legislature or other person, whether interested in its enactment or not. A statute is an act of the legislature as an organized body. It expresses the collective will of that body, and no single member of it, or all the members ad individuals, can be heard to say what the meaning of the statute is. It must speak for and be construed by itself, by the means and signs indicated above. Otherwise, each individual might attribute to it a different meaning, and thus the legislative will and meaning be lost sight of. Whatever may be the views and purposes of those who procure the enactment of a statute, the legislature contemplates that its intention shall be ascertained from its words as embodied in it. And courts are not at liberty to accept the understanding of any individual as to the legislative intent.'

Defendants' second assignment of error is that the court erred in denying their motion to dismiss the action. This motion was based on the ground that equity will not interfere to prevent the enforcement of the criminal law. The general rule is well settled: Equity will not restrain the enforcement of a criminal statute or regulatory ordinance providing a penalty for its violation; it may be challenged and tested only by way of defense to a criminal prosecution based thereon. See Davis v. City of Charlotte, 242 N.C. 670, 89 S.E.2d 406. If the act is unconstitutional or, if valid, it is being enforced in an unlawful way because of a misinterpretation, these defenses will defeat any prosecution based on it. Thompson v. Town of Lumberton, 182 N.C. 260, 108 S.E. 722; Paul v. Washington, 134 N.C. 363, 47 S.E. 793, 65 L.R.A. 902; 2 Strong, N.C. Index, Injunctions § 5 (1959); 28 Am.Jur., Injunctions § 189 (1959). The legal remedies of 'trial by jury, habeas corpus, motion, and plea are abundant safeguards in such instances, especially in the light of the serious consequences likely to follow the arbitrary tying of the hands of those intrusted with the enforcement of penal statutes.' Monroe Greyhound Ass'n v. Quigley, 130 Misc. 357, 223 N.Y.S. 830, 831. To the general rule, however, there is an exception: If the statute or ordinance itself is void, its enforcement will be restrained where there is no adequate remedy at law and such action is necessary to protect property and fundamental human rights which are guaranteed by the constitution. G. I. Surplus Store, Inc. v. Hunter, 257 N.C. 206, 125 S.E.2d 764; Orange Speedway, Inc. v. Clayton, 247 N.C. 528, 101 S.E.2d 406; Roller v. Allen, 245 N.C. 516, 96 S.E.2d 851; Davis v. City of Charlotte, supra; McCormick v. Proctor, 217 N.C. 23, 6 S.E.2d 870; 28 Am.Jur., Injunctions § 188 (1959); 43 C.J.S. Injunctions § 158 (1945). The constitutionality of a statute, however, may never be tested by injunction unless a plaintiff alleges and shows that its enforcement will cause him individually to suffer a personal, direct, and irreparable injury to some constitutional right. A party who is not personally injured by it may not assail a statute's validity. Fox v. Board of Commissioners for the County of Durham, 244 N.C. 497, 94 S.E.2d 482; Newman v. Watkins (Comrs. of Vance), 208 N.C. 675, 182 S.E. 453.

Plaintiffs here do not question the validity of the Turlington Act or the ABC Act of 1937; they only question defendants' interpretation of these Acts. The general rule that equity will not interfere by injunction with police officers in the enforcement of the criminal laws applies, however, whether a plaintiff contends the act is void or the officials' interpretation of it is erroneous. 28 Am.Jur., Injunction § 183 (1959); 43 C.J.S. Injunctions § 156, p. 771 (1945).

'The fact that peace officers may be mistaken in their conclusions of fact, or in their interpretation of the law, or of any statutory provision, does not authorize a court of equity in restraining them in their future efforts to conscientiously enforce the law. They may make mistakes, and those arrested may be acquitted, but such matters do not justify a blanket injunction against honest law enforcement.' Wood Bros. Thresher Co. v. Eicher, 231 Iowa 550, 1 N.W.2d 655, 660. Accord, Monroe Greyhound Ass'n v. Quigley, supra; Rutzen v. City of Belle Fourche, 71 S.D. 10, 20 N.W.2d 517; P. E. Harris & Co. v. O'Malley, 2 F.2d 810 (9th Cir. 1924).

There is nothing in the case at bar to take it out of the fundamental rule that equity will not interfere to prevent the enforcement of the criminal law. Plaintiffs do not contend that they have a constitutional right to provide a place for their patrons to consume alcoholic beverages as defined by G.S. § 18--60. They assert that the law does not prohibit them from doing so and that their patrons or customers have a legal right 'to bring a small quantity of tax paid whiskey' to a restaurant for their own use, and that plaintiffs will lose business if their customers are arrested for possessing and consuming intoxicating beverages in restaurants. obviously, plaintiffs' constitutional right to earn a livelihood by engaging in the restaurant business is not infringed by either the Turlington Act or the ABC Act.

If it were to be assumed that the 1966 opinion of the Attorney General which triggered this action constituted an erroneous interpretation of these two enactments and that defendants were acting upon a misapprehension of the meaning of those laws when they announced their intention to enforce them in accordance with that opinion, still plaintiffs have shown no direct, personal injury. If fewer people 'eat out' because they cannot take their liquor away from home and plaintiffs' income is reduced in consequence, the loss is merely consequential. Furthermore, the fact that they may suffer some pecuniary loss from such enforcement is not the test. Suddreth v. City of Charlotte, 223 N.C. 630, 27 S.E.2d 650.

The action of the court below in issuing the injunction in question is without sanction in precedent or principles of equity. Ordinarily, in a case thus constituted we would decline to pass upon the question presented and order the action dismissed. Dare County v. Mater, 235 N.C. 179, 69 S.E.2d 244; Town of Clinton v. Ross, 226 N.C. 682, 40 S.E.2d 593; Jarrell v. Snow, 225 N.C. 430, 35 S.E.2d 273; Carolina Motor Service v. Atlantic Coast Line R.R. Co., 210 N.C. 36, 185 S.E. 479, 104 A.L.R. 1165. Such procedure, however, would not end this controversy, which has become a matter of great public interest. As Barnhill, J. (later C.J.), said in Suddreth v. City of Charlotte, supra, 223 N.C. at 634, 27 S.E.2d at 654, dismissal would 'tend to prolong an unfortunately provocative situation. * * * Hence, we have exercised our discretionary right to express an opinion on the merits of the exceptive assignments of error * * *' See also Turner v. City of New Bern, 187 N.C. 541, 122 S.E. 469; 1 Strong, N.C.Index, Appeal and Error § 2 (1957).

We come, then, to the determinative question in this controversy: Where and under what circumstances in an area which has elected to come under the ABC Act (wet or conforming area), may one legally possess alcoholic beverages as defined in G.S. § 18--60, I.e., all beverages containing more than 14 per centum of alcohol? (Beer, wine, and ales containing a lower alcoholic content are eliminated by this definition.) This is a question which has not heretofore been squarely presented to this Court. To find the answer we must construe the Turlington Act (N.C.Pub.Laws 1923, ch. 1, codified as G.S. § 18--1 through G.S. § 18--30) as amended by the ABC Act (G.S. § 18--36 through G.S. § 18--62). Defendants contend that one may legally possess alcoholic beverages in any area in North Carolina (whether it be wet or dry) at the following places only: (1) in his own dwelling as provided by G.S. § 18--11; (2) while transporting not more than one gallon from a...

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