Union Carbide Corp. v. Davis
Decision Date | 09 November 1960 |
Docket Number | No. 389,389 |
Citation | 116 S.E.2d 792,253 N.C. 324 |
Court | North Carolina Supreme Court |
Parties | UNION CARBIDE CORPORATION, v. John T. DAVIS, Individually, and Trading as D & J Market. |
Blackwell, Blackwell & Canady, T. Winfield Blackwell, Jack F. Canady, Winston-Salem, for plaintiff, appellant.
Buford T. Henderson, Abner Alexander, Winston-Salem, for defendant, appellee.
T. W. Bruton, Atty. Gen., Ralph Moody, Asst. Atty. Gen., for the State, amicus curia.
The North Carolina Fair Trade Act, Chapter 66, Article 10, was enacted as Chapter 350, Public Laws of 1937. In Lilly & Co. v. Saunders, 216 N.C. 163, 4 S.E.2d 528, 125 A.L.R. 1308, this Court analyzed the purposes and effect of the Act. Controversy has existed over its constitutional validity. Arguments and authorities for and against are exhaustively treated in the opinion and in the dissent.
Courts must pass on constitutional questions when, but only when, they are squarely presented and necessary to the disposition of a matter then pending and at issue. American Equitable Assurance Co. v. Gold, 249 N.C. 461, 106 S.E.2d 875; City of Greensboro v. Wall, 247 N.C. 516, 101 S.E.2d 413; Roller v. Allen, 245 N.C. 516, 96 S.E.2d 851. The jurisdiction of this Court is derivative. Questions of law or legal inference come to it for purposes of review. If the lower court has no jurisdiction, the Supreme Court cannot acquire jurisdiction by appeal. Baker v. Varser, 239 N.C. 180, 79 S.E.2d 757; Gill v McLean, 227 N.C. 201, 41 S.E.2d 514.
The only question presented before the superior court was whether the temporary restraining order should be continued to the hearing. Judge Johnston acted, not upon a showing or failure to show equitable grounds for continuing the order, but dissolved it solely upon the ground the General Assembly acted in violation of the State Constitution in passing the Fair Trade Act. 'The constitutionality of a statute will not be determined on the question being raised in a collateral proceeding, or on preliminary motions, or interlocutory order * * *.' 16 C.J.S. Constitutional Law § 95. Mayo v. Lakeland Highlands, Canning Co., 309 U.S. 310, 60 S.Ct. 517, 520, 84 L.Ed. 774.
'The judge hearing the order to show cause why the injunction should not be continued to the hearing had no jurisdiction to hear and determine the controversy on the merits, and his findings of fact and conclusions of law were but instruments of decision in the matter before him.' Patterson v. Durham Hosiery Mills, 214 N.C. 806, 200 S.E. 906, 908.
''When the judge below grants or refuses an injunction, he does so upon the evidence presented, and the only question is whether the order should be made, dissolved, or continued; he cannot go further and determine the final rights of the parties, which must be reserved for the final trial of the action.' N. C. Prac. & Proc. (McIntosh), Par. 876, p. 994, and cases there cited.' MacRace & Co. v. Shew, 220 N.C. 516, 17 S.E.2d 664, 665; Lawhon v....
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...a final judgment which settles the rights of the parties, after the determination of all issues raised." Union Carbide Corp. v. Davis, 253 N.C. 324, 328, 116 S.E.2d 792, 794-95 (1960) (quoting Galloway v. Stone, 208 N.C. 739, 740, 182 S.E. 333, 333 (1935)); Tomlinson v. Cranor, 209 N.C. 688......
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