Fleming v. City Of Asheville, 102.
| Decision Date | 24 January 1934 |
| Docket Number | No. 102.,102. |
| Citation | 205 N.C. 765,172 S.E. 362 |
| Court | North Carolina Supreme Court |
| Parties | FLEMING et al. v. CITY OF ASHEVILLE et al. |
Appeal from Superior Court Buncombe County; Alley, Judge.
Suit by Clyde F. Fleming, owner and operator of the Kenilworth Bus Lines, and others, against the City of Asheville and others. From an adverse judgment, plaintiffs appeal. Affirmed.
This is an action to restrain and enjoin the defendants, the city of Asheville, its city manager, and other officials, from enforcing against the plaintiffs an ordinance of the city of Asheville on the ground (1) that the plaintiffs are not included within the terms and provisions of the ordinance; and (2) that if plaintiffs are included within the terms and provisions of the ordinance, the said ordinance is void for that it contravenes certain provisions of the Constitutions of the state of North Carolina and of the United States.
When the action was called for trial on the issues raised by the pleadings, a trial by jury was waived, and it was agreed that the judge should hear the evidence, find the facts, and render judgment accordingly.
On the facts found by the judge, it was considered, ordered, and adjudged that the plaintiffs are not entitled to an order restraining the defendants, the city of Asheville, its city manager, and other officials, from enforcing against the plaintiffs its ordinances and laws relating to the operation of jitney busses, and that the restraining order heretofore issued in the action be and the same was dissolved. It was further ordered and adjudged that the plaintiffs pay the costs of the action to be taxed against the plaintiffs and the sureties on their prosecution bond.
The plaintiffs appealed from the judgment to the Supreme Court.
Edward H. McMahon, of Asheville, for appellants.
C. E. Blackstock and P. 0. Cocke, Jr., both of Asheville, for appellees.
On a former appeal by the plaintiffs from a judgment in this action, dissolving a temporary restraining order, the judgment was reversed, and the action remanded to the superior court of Buncombe county for further proceedings in accordance with the opinion of this court. Flemming v. City of Asheville, 203 N. C. 810, 167 S. E. 77. No findings of fact appeared in the judgment, and for that reason it could not be determined by this court on what grounds the temporary restraining order was dissolved.
It now appears from the findings of fact set out in the judgment that the ordinance of the city of Asheville, which the plaintiffs contend is void, is applicable to the plaintiffs, for the reason that the plaintiffs are within its terms and provisions. The sole ground, therefore, on which plaintiffs now contend that they are entitled to the...
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Jarrell v. Snow
...or the validity of the resolution in anticipation of an effort to enforce it. Loose-Wiles Biscuit Co. v. Sanford, supra; Flemming v. City of Asheville, supra; Thompson v. of Lumberton, supra; State v. Southern R. Co. supra; Turner v. New Bern, supra; Latham v. Harris, 194 N.C. 802, 139 S.E.......
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Jarrell v. Snow, 20.
...ordinance enforceable only by indictment. Loose-Wiles Biscuit Co. v. San-ford, 200 N.C. 467, 157 S.E. 432; Flemming v. City of Asheville, 205 N.C. 765, 172 S.E. 362; Seaboard Air Line Ry. Co. v. Raleigh, D.C., 219 F. 573, affirmed 242 U.S. 15, 37 S.Ct. 8, 61 L.Ed. 121; State v. Southern R. ......
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Suddreth v. City of Charlotte
... ... Lumberton, 182 N.C. 260, 108 S.E. 722, ... and cases cited; Turner v. New Bern, supra; Fleming v ... Asheville, 205 N.C. 765, 172 S.E. 362 ... Even ... so, there are more ... ...
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