Fox v. Board of Com'rs of Durham County

• Decision Date: 26 September 1956
• Docket Number: No. 667,667
• Citation: 94 S.E.2d 482,244 N.C. 497
• Parties: Herbert J. FOX and wife, Frances Hill Fox, Howard W. Gamble and wife, Paul D. Gamble, Isaac H. Terry, Jr., J. M. Hagy, John B. Nichols and Jule S. Coley, for and on behalf of themselves and other residents and taxpayers of Durham County, v. The BOARD OF COMMISSIONERS for the COUNTY OF DURHAM, S. LeRoy Proctor, George F. Kirkland, Edwin B. Clements, Frank H. Kenan and Dewey S. Scarboro.
• Court: North Carolina Supreme Court

Page 482

94 S.E.2d 482

244 N.C. 497

Herbert J. FOX and wife, Frances Hill Fox, Howard W. Gamble and wife, Paul D. Gamble, Isaac H. Terry, Jr., J. M. Hagy John B. Nichols and Jule S. Coley, for and on behalf of themselves and other residents and taxpayers of Durham County, v. The BOARD OF COMMISSIONERS for the COUNTY OF DURHAM, S LeRoy Proctor, George F. Kirkland, Edwin B Clements, Frank H. Kenan and Dewey S. Scarboro.

No. 667

Supreme Court of North Carolina.

Sept. 26, 1956

E. C. Brooks, Jr., and Gantt, Gantt & Markham, Durham, for plaintiffs, appellants.

Reade, Fuller, Newsom & Graham, Durham, for defendants, appellees,

BOBBITT, Justice.

The court below adjudged: (1) that the Act is constitutional and valid in its entirety; and (2) that the zoning ordinance is in all respects valid except as to the quoted definition of 'agricultural and farming purposes.' The questions stated and argued in appellants' brief relate solely to the constitutionality of the Act.

True, the quoted portion of the zoning ordinance adjudged void by the court below was challenged as violative of the Act itself. But it was not alleged or shown that any plaintiff owns realty constituting farm land either subject to or exempt from the provisions of the ordinance. Indeed, it is not alleged or shown that any plaintiff owns any property of any kind presently restricted by the ordinance. Plaintiffs cannot present an abstract question and obtain an adjudication in the nature of an advisory opinion. Bragg Development Co. v. Braxton, 239 N.C. 427, 79 S.E.2d 918; Hood ex rel. United Bank & Trust Co. v. Richardson Realty, Inc., 211 N.C. 582, 591, 191 S.E. 410.

Plaintiffs alleged that they will suffer irreparable injury unless defendants are restrained from using county tax funds to implement the Act and the ordinance. This is based solely on their status as residents and taxpayers of Durham County. Should an unauthorized or illegal tax be levied against any of the plaintiffs, an adequate remedy at law is available. G.S. 105-406; Bragg Development Co. v. Braxton, supra; Newman v. Watkins, 208 N.C. 675, 182 S.E. 453.

In 28 Am.Jur., Injunctions sec. 182, the general rule is stated as follows: 'The usual ground for asking injunctive relief against the enforcement of statutes is their invalidity, but that, of itself, is not sufficient to warrant the exercise by equity of its extraordinary injunctive power. In other words, the mere fact that a statute is alleged to be unconstitutional or invalid will not entitle a party to have its enforcement enjoined. Further circumstances must appear bringing the case under some recognized head of equity jurisdiction and presenting some actual or threatened and irreparable injury to complainant's rights for which there is no adequate legal remedy. If it is apparent that the law can furnish all the relief to which the complainant is entitled, the injunction will be refused.'

When public officials act in accordance with and under color of an act of the General Assembly, the constitutionality of such statute may not be tested in an action to enjoin enforcement thereof unless it is alleged and shown by plaintiffs that such enforcement will cause them to suffer personal, direct and irreparable injury. Newman v. Watkins, supra, and cases cited; Hood ex rel. United Bank & Trust Co. v. Richardson Realty, Inc., supra; also, see Amick v. Lancaster, 228 N.C. 157, 44 S.E.2d 733. The rule as stated was fully recognized, not impaired, in State ex rel. Summerell v. Carolina-Virginia Racing Association, 239 N.C. 591, 80 S.E.2d 638, and in State ex rel. Taylor v. Carolina Racing Association, 241 N.C. 80, 84 S.E.2d 390. It has been frequently pointed out that 'the courts will not declare void an Act of the Legislature unless the question of its constitutionality is presently presented and it is found necessary to do so in order to protect rights guaranteed by the Constitution.' Turner v. City of Reidsville, 224 N.C. 42, 46, 29 S.E.2d 211, 214; State v. Lueders, 214 N.C. 558, 200 S.E. 22. The rule is epitomized in this succinct statement of Adams, J.: 'A party who is not personally injured by a statute is not permitted to assail its validity; * * *.' Yarborough v. North Carolina Park Commission, 196 N.C. 284,...