The
plaintiff in this action seeks to restrain the defendants
Sheriff of Pitt County, N. C., and the Chief of Police of the
City of Greenville, N. C., from interfering with certain slot
machines in his possession, contending that taxes have been
paid on the machines and they are legal slot machines. The
prayer for relief is as follows: "(1) That the
defendants, Sheriff of Pitt County and Chief of Police of the
City of Greenville, their officers, deputies, agents
employees and attorneys, be restrained and enjoined from in
any wise interfering with the operation of any of
plaintiff's machines described in the petition anywhere
within the limits of the City of Greenville or County of
Pitt, and that they be restrained and enjoined from removing
or attempting to remove said machines from such place or
places where they may be now or hereafter located. (2) For
such other and further relief as may be necessary and proper
and the nature of the petition demands, and for
costs."
The
defendants in answer say: "That all of the machines
owned, sold, rented or distributed by said plaintiff are
illegal, except those machines commonly known as mechanical
clerks or vending machines, which give the same fixed return
each and every time a coin is placed or inserted in same and
except of course music machines. *** Defendants admit that
plaintiff owns 100 and more slot machines in Pitt County, and
that same are distributed throughout Greenville and Pitt
County, but it is expressly denied that said machines have
been legalized under Sec. 130, of Chap. 158, of the North
Carolina Laws of 1939, or under any other law; and, further
answering said paragraph, defendants, upon information and
belief, allege, and say: That the machines to which plaintiff
refers are illegal, operated as gambling devices and/or are
capable of being operated as gambling devices, and that
plaintiff, in defiance of the law, has distributed said
machines throughout Greenville and Pitt County, and that same
are being operated in violation of the law, and to the
detriment of public morals, and especially to the detriment
of the morals of the youth of the town and county. ***
Defendants say that even if license taxes have been paid on
said machines as alleged by plaintiff, that same does not
legalize the operation of illegal machines, for that the
licensing department of the state, county or town has no
authority to license crime in any form. *** Defendants admit
that the machines which they intended to seize under the law
and under instruction of the Court, and by direction of the
Grand Jury
are the property of the plaintiff, but
defendants deny that they intended to confiscate said
machines, or to do anything with same other than hold them as
evidence and subject to the orders of the court of competent
jurisdiction; and defendants further deny, upon information
and belief, that said machines come within the classification
of Subsection 1, of Section 130, of Chapter 158 (Laws of
1939), or any other legal classification. *** Defendants
allege and say that if plaintiff's continuance in
business is dependent upon his being able to circumvent and
defy the law by the operation of unlawful slot machines
prohibited by statute, he should be forced out of such
business, certainly insofar as said business is unlawful or
of a criminal nature, but it is expressly denied that
defendants intend in any way to interfere with any lawful
business that plaintiff may be conducting. *** Defendants
allege and say that they have no intention of interfering
with any legal machines, slot or otherwise, owned by the
plaintiff or anyone else, and that they have no intention of
confiscating any machines--but only intend to hold same as
evidence--subject to the orders of the Court, and that they
have made no unlawful threats against the defendants or
anyone else, and that they have not and do not intend to
infringe upon any of the constitutional or legal rights of
plaintiff, and that their only intention is to enforce the
law under instruction of the Court and on recommendation of
the Grand Jury; and defendants, on information and belief,
and upon such information and belief, aver: That plaintiff,
who is conducting an illegal slot machine business and
racket, is attempting to enjoin and prevent them from
properly performing their duties as officers of the law. ***
Wherefore, defendants pray the Court: (1) That the temporary
injunction or restraining order issued in this cause on the
4th day of September, 1939, by Hon. Leo Carr, one of the
Judges of the Superior Court, be dissolved and dismissed to
the end that defendants may proceed unhampered and unfettered
in the performance of their duty as law enforcement officers.
(2) That the Court hold, as a matter of law, that it is
without authority to enjoin and restrain law enforcement
officers from enforcing the criminal law of the State,"
etc.
A
temporary restraining order was duly issued, but dissolved by
His Honor J. Paul Frizzelle, on the hearing. In the Judgment,
in part, is the following: "The Court being of the
opinion that it is without jurisdiction or authority in this
cause to restrain the Sheriff of Pitt County and the Chief of
Police of Greenville, G. A. Clark, in the performance of
their duty as law enforcement officers in enforcing the
criminal laws of the State of North Carolina involved in this
matter, but if the Court does have such jurisdiction or
authority, that the restraining order heretofore issued
herein should in any event be dissolved, and, being of such
opinion, announced that the Court did not care to hear
evidence as to the legality or illegality of said machines
involved in the controversy. *** It is Further Considered,
Ordered and Adjudged that the plaintiff have until September
23rd to take and remove from their present locations all
machines referred to in the petition and he shall be
permitted to store said machines if he so desires, pending
the appeal herein to the Supreme Court, without molestation
of the defendants, their agents or servants."
To
the foregoing judgment the plaintiff excepted and assigned
error and appealed to the Supreme Court. The exception and
assignment of error and other necessary facts will be set
forth in the opinion.
CLARKSON
Justice.
Did the
Court below commit error in refusing to hear evidence and to
find facts, as to the legality of the machines involved in
the controversy? We think so, under the facts and
circumstances of this case.
Chapter
158, Public Laws 1939, expressly prohibits certain types of
slot machines and permits other types of slot machines as
lawful. Plaintiff claims his machines are of those types made
lawful by this Act, whereas defendant officers contend that
these machines are illegal and, as such, may be seized and
destroyed under Code 1935, § 4435. Plaintiff and defendants
announced that they were prepared to offer evidence as to the
legality of the machines here involved, but, the Court below,
being of the opinion that it was without jurisdiction to
restrain defendants in the enforcement of the criminal law,
refused to hear evidence and dissolved the temporary
restraining order.
In
Hinkle v. Scott, 211 N.C. 680, 191 S.E. 512, the
Court presumed that the trial court found sufficient facts,
since there were no findings of fact in the judgment and no
request for such findings. Here, however, we are not able to
indulge in this presumption, as it appears affirmatively in
the judgment that "the Court did not care to hear
evidence as to the legality or illegality of said machines
involved in the controversy." Further, in Hinkle v.
Scott, supra, it was pointed out that since the operation of
the machines was permitted pending the appeal, no
"substantial loss" was caused the owners of the
machines; in the instant case the machines were ordered
removed from operation and placed in storage pending the
appeal, thus resulting in the discontinuance of
plaintiff's business in the county pending the appeal.
Generally, the equitable powers of the courts may not be
invoked to prevent the enforcement of a criminal law where
the basis of the petition in equity constitutes a valid
defense to an indictment for the violation of the law in
question. This principle appears in our cases as early as
Cohen v. Commissioners, 77 N.C. 2, 3, where, in
refusing to allow an injunction to restrain town
commissioners from enforcing an ordinance, Reade, J.,
speaking for the Court, pointed out that the plaintiff if
injured had redress in an action for damages and declared:
"*** we are aware of no principle or precedent for the
interposition of a Court of Equity in such cases." In
Paul v. Washington, 134 N.C. 363, 47 S.E. 793, 65
L.R.A. 902, in declaring that the validity of an ordinance
cannot be tested by injunction, the principle that the courts
can not enjoin the enforcement of the criminal law or of
municipal ordinances was clearly enunciated; the reason
assigned for the rule being that "the State cannot be
enjoined from the execution of its criminal laws." This
case was followed with approval, the additional reasons and
further citations in support of the rule given, in State
v. Southern Railway, 145 N.C. 495, at page 522, 59 S.E.
570, at page 579, 13 L.R.A.,N.S., 966, where, it was stated:
"The doctrine may be considered as settled in this state
against the right of a court exercising equitable
jurisdiction to interfere by injunction with other courts in
the due course of administering and enforcing the criminal
laws of the state." This principle was reiterated in
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