*1 1939. TERM, N. 0.] Proctor.
McCormick v. injury but loss pecuniary direct not embracing only special damages Winslow, “Com supra. Baker v. anguish, mental etc.” feelings, i.e., indirect, loss direct include pensatory damages (1) pecuniary inconvenience; pain special (2) damages physical damages; damages injury repu (4) for mental (3) damages suffering; Leach, Barringer Bynum, supra; v. Fields v. supra; tation.” Osborn Deal, supra. result general damages fact that the law However, presumes of a libel not preclude se does publication per and special. offering damages general evidence both had anguish, testified that he suffered mental substance of the publication complained humiliation and embarrassment as a result damages of. evidence, together presumption general This with entitled to the resulting publication libel, from the of the it was jury award of the amount of which of the damages, duty some to determine.
A the record the briefs filed leads us to the careful examination exceptive error without substan- assignments conclusion that tial merit.
No error. Trading McCORMICK, B. L. VENDING MACHINE COM as McCORMICK PANY, PROCTOR, COUNTY, of PITT J. KNOTT and G. A. Sheriff City GREENVILLE, CLARK, C. of Police of the Chief 1940.)
(Filed February, Appeal 1. and Error 40a—§ findings Ordinarily, there of fact when are no in the record it will he supporting presumed judgment, facts found its but when to hear discloses court refused the record evidence and find facts point, presumption indulged. cannot be _on material Injunctions 7— 2. § general rule is that courts of will not interfere with the State, person criminal laws of the will remit the enforcement charged setting up attacking constitutionality defense prosecution in a thereunder. statute Gaming 2b— § police Sheriffs, by statute, officersare authorized constables Michie’s destroy expressly Code, permitted all slot machines to seize not 130, chapter 158, Public Laws of section hold such prosecutions for criminal under as evidence the statute. Injunctions 7— § rule, ato interfere with the enforce- As an injunction protect effectually law when of a criminal ment injuries rights persons. property irremedial and to IN THE SUPREME COURT. *2 7, Injunctions 11 —Held: Court should have found whether slot §§ determining plaintiff’s machines were in officers interfering from with his business. Plaintiff, the owner of certain slot machines which had. been seized law, officers of instituted this action to restrain the officersfrom inter- fering operation machines, alleging plaintiff with the of the said had county paid State and licenses thereon and that the machines were lawful provisions 130, chapter 158, 1939, of under the section Public and Laws of plaintiff that if defendants were not restrained would be forced of his out temporary restraining lawful business. The court dissolved the theretofore issued order ground jurisdiction that it was without to inter- any event, with the enforcement fere and of the criminal laws of the State in or refused hear evidence to find facts as to whether the machines question in temporary were lawful. Held: error It was for the court to dissolve the finding lawful, order without whether the machines were since finding Supreme in whether the case of the absence such Court is unable to determine falls within the rule that courts of not interfere with the administration of the criminal laws of the State or it comes within whether of a to that rule that the enforcement enjoined necessary protect when constitu- injury. irremedial tional Staoy, L, concurring. C. JL, join concurring opinion. in Winborne, Barki-iill
Appeal Frizzelle, J., from at in by plaintiff Hill, Chambers Snow 1939. From Pitt. Error 0., N. September, remanded. action to restrain plaintiff seeks the defendants, sheriff of C., Pitt N. and the chief of County, police city Greenville, from with certain slot interfering machines his possession, that taxes been contending paid have the machines and they legal prayer slot machines. The relief is as follows: “(1) That de- sheriff of Pitt and chief of fendants, County police city Green- ville, officers, deputies, agents, employees attorneys, be re- from in enjoined strained and wise any interfering with operation machines any described the petition anywhere within the or city limits Greenville county Pitt, and that they enjoined removing restrained attempting remove said place machines such where places hemay now or hereafter For such other and (2) located. further relief as may be and the nature proper, petition demands, and for costs.” say: answer “That all of the machines sold, owned, or distributed said rented are illegal, except those machines known as mechanical clerks or commonly vending machines, which give fixed return each and every the same time a coin is placed or inserted and, except same course music machines. . . . Defendants owns 100 and admit that more machines in Pitt County, are distributed throughout and that same Greenville and Pitt County, TEEM, N. CL]
McCormick Pkootoe. under legalized have been tbat said machines denied expressly under 1939, Laws of the North Carolina see. ch. defendants, upon paragraph, answering said law; and, further to which That the machines belief, allege say: information and devices gambling as illegal, operated refers are and/or devices, plaintiff, gambling capable being operated Greenville throughout said law, has distributed defiance of the in violation are being operated and that same and Pitt County, the detri- especially morals, of public and to detriment . De- county. town and youth ment of the morals on said machines have been paid even license taxes say fendants of illegal legalize that same does not as alleged plaintiff, or town State, county department machines, licensing *3 . . Defendants any to in form. . has no license crime authority law and intended to under the they machines which seize admit that the of grand jury, of and direction the court, under instruction the intended to deny they but defendants that plaintiff, property the than hold machines, or to do with same other anything said confiscate competent of of subject and to orders the court them as evidence the belief, and further information deny, upon and defendants jurisdiction; 1 of within the classification subsection that said machines come classifica- (Laws 1939), any legal 130 of or chapter section if plaintiff’s . . and that continuance allege say tion. . Defendants the defy in is able to circumvent and dependent upon being business his he statute, law of unlawful slot machines prohibited by the in business out of so far as said business, certainly should be forced such denied that nature, is unlawful or it is expressly in to with lawful that any any defendants intend interfere business way say . . . and that conducting. allege be Defendants no or legal machines, have intention of with slot they interfering any no else, or that otherwise, anyone they owned the and have as only machines—but intend to hold same confiscating intention no to and subject court, they the orders the that have made evidence— else, defendants anyone unlawful threats the and do not intend to constitutional or infringe upon any have not the and to only that their intention is the legal rights plaintiff, enforce grand of the court and recommendation of the under instruction belief, and on information and and infor- jury; defendants, upon such mation and That who is belief, plaintiff, conducting aver: is racket, attempting enjoin machine business and to them from as their duties officers of the law. . . properly performing court: Wherefore, pray (1) injunc- the That temporary the tion or order issued on the restraining day this cause 4th of Septem- THE IN SUPREME COURT. her, Court, Hon. 1939, by Carr, Leo one the judges Superior dissolved to end unham- may proceed dismissed that defendants pered and unfettered in duty of their as law enforce- performance ment hold, officers. That (2) the court as matter without authority and restrain law enforcement officers the criminal law of enforcing State,” etc.
A temporary restraining order was hut duly issued, dissolved by Honor, J. Paul Erizzelle, In hearing. judgment, part, the following: court “The that it is without juris- diction or authority this cause restrain the of Pitt County sheriff chief of A. police Greenville, Clark, G. performance their as law duty enforcement officers the criminal enforcing laws Carolina State North involved in this matter, but does court jurisdiction have such authority, restraining order heretofore issued herein should in any dissolved, event be and, being of such opin- ion, announced did not care to hear evidence legality illegality said machines involved . '. controversy. It further considered, ordered and adjudged have .is until 23rd September take remove their present locations all machines referred to in shall petition permitted to store said machines if he so desires, pending the herein appeal to the Supreme Court, without molestation of the defendants, agents or servants.”
To the foregoing judgment the plaintiff excepted assigned error appealed the Supreme Court. The assignment error and other necessary facts set forth in the opinion.
Albion Dunn plaintiff. for D. M. Ciarle and & Harding Loe for defendants. J. Did the below court commit error in refusing to hear Clarkson, and to find facts, evidence as to in legality the of the machines involved the controversy? so, We think under the facts and of circumstances this case.
Chapter 158, Public Laws 1939, certain expressly prohibits types slot machines and permits types as machines lawful. Plaintiff claims his act, machines are those lawful types made whereas defendant and, officers contend that these machines are as such, may seized and destroyed S., under C. 4435. Plaintiff announced that he was to offer prepared evidence as legality the involved, but, the here below, being the it was without jurisdiction to restrain in the enforce- ment of the criminal law, refused to hear evidence dissolved the order. temporary restraining 27 TERM, 1939.
N. O.] Proctor.' v. trial Scott, presumed court C., v. the 680, In Hinkle N. in the of fact no findings were since there facts, court found sufficient not however, we are Here, findings. no for such judgment request in the affirmatively as it appears in this indulge presumption, able the legality as to not to hear evidence court did care judgment “the in Further, controversy.” in the of said machines involved or illegality Scott, operation out that since the supra, pointed Hinkle v. was was no loss” “substantial pending appeal, the permitted machines was were instant case machines machines; in the the owners the caused the in storage pending placed ordered removed in in business discontinuance resulting thus appeal, appeal. county pending the not be invoked may of the courts powers
Generally, equitable law the basis petition a criminal where the enforcement violation in a valid defense to an indictment constitutes in our early in cases as appears This question. principle Comrs., injunc in to allow an C., where, refusing Cohen v. N. 2 (3), Beade, an from enforcing ordinance, tion to town commissioners restrain J., injured had Court, out that the speaking pointed “. aware declared, redress in an action for We are damages interposition of no for the court principle precedent 363, In Washington, C., declaring Paul v. N. such cases.” injunction, ordinance cannot be tested validity principle cannot the enforcement of the criminal law or courts enunciated; reason for the municipal clearly assigned ordinances was of its enjoined that “the State cannot be the execution rule laws.” was followed with the additional approval, This case R., in S. R. support given, citations reasons further 522, at it was stated: doctrine C., where, p. “The exercising as settled this State a court considered by injunction to interfere with other courts equitable jurisdiction and enforcing the criminal laws of the administering due course Point, Express High State.” This was reiterated Co. principal J., Brown, p. 105, Court, where at for the “The wrote: by injunction courts of this State will not undertake to enjoin law. must party charged enforcement the criminal with crime and if plead indictment, convicted, may, make this defense and his case to this Court.” by appeal, bring *5 Bern,
In Turner v. New 541 C., (548), subject, 187 to the speaking an ruling injunction it is said: “The same that will not against lie enforcement ordinance when there is a on city remedy by defense trial of an indictment for the misdemeanor for violation of ordi- action has nance or been in all by damages, récognized jurisdictions. 28 IN THE SUPREME COURT. V.
MOCOBMICK
PROCTOR.
21
A.,
L. R.
and
2
A.
notes;
A.,
notes;
and
L. R.
and
R.
L.
(N.
632, and
and in
in our
S.),
notes,
reports.
Indeed,
other cases
own
the whole matter has been
very recently
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discussed
the same
sition
asserted, citing
cases, Thompson
the above and other
v. Lumber
ton,
It has been law and custom immemorially hold as evidence to the trial a criminal case, illicit pistols, alleged etc. liquor, Code, N. C. (Michie), sec. 4435, supra, jus- is as follows: “All tices of peace, sheriffs, constables officers of hereby police are authorized and directed, information made them oath any table to be gaming prohibited used article, any punch- board or illegal slot machine is in the possession or use of person within the limits their jurisdiction, to destroy the by every same means in their power; and shall call all aid good citi- zens of the county, necessary, to its effect destruction.” Homer, In Daniels v. 139 N. (225), is “The following: U. Supreme S. said, Court further ‘It says: however, nets are not in a nuisance, themselves perfectly lawful of manu- acts facture used for a lawful ordinarily purpose. This, however, is by no means a conclusive answer. Many articles, such, instance, as cards, dice other articles used for gambling purposes, perfectly in themselves, harmless but may become nuisances to an by being put illegal use, and in such fall cases within the ban bemay summarily . destroyed. power of the Legislature to declare is perfectly which innocent in itself to unlawful, is beyond ques- West, tion. (People Y., 293), and in such case the Legislature annex to prohibited act all the incidents of a offense, the destruction of including property denounced publie as a ” nuisance.’ *6 TERM, N. O.] v. Pboctob.
McCobmick officers, duty sheriffs, constables, police on law imposes Tbe slot of illegal and use possession taking cognizance Dili- them. destroying seizing and of gambling devices, and other officers is to enforcement duty part of this gent performance all the lawful assertion of vigorous and, only by commended highly be In addition to evil. persistent eradicate this available, may means we in themselves which indictment, summary processes upheld must be evil, and effect the unusual character recognize encourage, of the court to duty and it should be the when applicable, officers to administrative than- the efforts made embarrass, rather order. morals and decency, good affronts to public such suppress ain engaged that he is however, plaintiff protests In this case, not of an illegal and that the coin-slot devices used are lawful business findings to or make any trial declined hear evidence judge type. or further seizure, their injunction against and dissolved the fact, business. molestation record that defendants were
It does not directly appear criminal any specific under of a warrant or virtue acting authority by way defendants answered although prosecution against plaintiff, was an official action said slot machines seizing defense Thus, officers. law-enforcing action of their duties prosecution themselves brought to doubt whether defendants have open be length at some principle within the discussed squarely protection has taxes hand, alleged paid On has that he above. Attorney- machines as legal machines, to the State said said machines given of North Carolina has as his General are has been advised that the acts of defendants legal, and without warrant of law” confiscatory, “oppressive, prohibitive will forced restrained, and “that defendants are not statutory of business and his Constitutional deprived out of business to on location various sell, distribute, put places lease without due amusement, process will be confiscated property to business, and will of a lawful which he is entitled deprived supported In thus he is numerous cases invoking equity pursue.” previously discussed, forth to the setting exception to interfere, prevent even prose exception effectually rights to and- cutions, protect property when this injuries persons. Advertising irremediable Asheville, 737; Thompson, Terrace v. 263 U. S., 197; Co. Raich, Truax 25 L. R. A. 193. How S., 33; Note, (N. S.), 239 U. bring it is who invokes the action ever, duty general rule, having himself within the this Court evidence to determine whether the facts suffi- examine the power THE IN SUPREME COURT.
(cid:127)cient to him bring Advertising within protection exception. *7 Asheville, Co. v. supra find the (739). As the court below has failed to facts, this Court is falls unable to whether instant case determine the within the or the thereto.
For the reasons given, and to end that the the found, the facts cause remanded.
Error and remanded. J.,C. concurring: question The for decision a is whether Stacy, court has the to hear authority plaintiff the his allegation that the herein, sheriff and chief of police, have, respectively, without warrant of law, threatened to destroy legitimate business and to destroy it, plaintiff’s irreparable damage, unless restrained. The answer is “Yes.”
The that he is alleges engaged a lawful business, operating renting Pitt County vending machines, or amusement ma- chines coin-in-the-slot machines, “such as legalized are under section 130, chapter 158, Public Laws of 1939”; that the reasonable value of said machines is $9,000; that he has paid State, county municipal taxes for amounting $3,600 privilege business; engaging Attorney-General in a has, State formal opinion, declared the business of the legal, pursuant opinion State Commissioner duly Revenue has licensed in ques- the machines tion; that the defendants herein have threatened to seize the plaintiff’s “on machines and will sight” seize and them, confiscate to plaintiff’s irreparable injury, unless restrained a court of equity to which he for appeals protection his property rights, has no adequate remedy at law.
The court declined to hear any evidence, and plaintiff’s appeal from the refusal the court to him. hear judgment recites: “The court opinion jurisdiction it is without authority this cause . . announced that' the court did not care to hear evi- as to dence legality of said illegality in the involved controversy.” case, then, comes this: The State North Carolina, act of
Assembly, authorizes the use certain slot machines (while prohibiting the use others) imposes number of for taxes privilege engaging such business. The plaintiff applies licenses to engage this business. They are granted to him on the advice Attorney-General the State that his business is legal. He pays his taxes amounting $3,600. The officers threaten to seize his machines “on sight” and to confiscate his He property. appeals to the courts of the State for the protection his property 1939. TEEM, N. O.] afford to accept can If authorities
rights. taxing just only it seems legitimate, his business as and license money bono, whether say they et courts to cequo ex fitting, Asheville, 149; E., 128 S. C., 737, 189 N. Co. v. Advertising wrong. Marion, Thompson, 763; Terrace v. E., 154 N. 69 S. C., 73, Crawford dissenting 195 U. See Angeles, S., Dobbins v. Los S., 197; 263 U. Scott, and con E., 512, S. C., 680, in Hinkle v. Bern, 469; 122 S. C., 541, E., in Turner v. New 187 N. curring opinions Goldsboro, E., R. R. 71 S. under author acting do not allege the defendants While instituted prosecution warrant or virtue ity other thought trial court still, apparently as the plaintiff, not be amiss to observe record, may or so wise, apprehended their doors on manner of the courts of to close it is not after the *8 of a criminal loss, even the face allegations irreparable property Asheville, supra; Co. v. Advertising actual threatened. prosecution, Winston-Salem, post, is, Clinard v. 119. The In re merely such, with a criminal prosecution, will not interfere 124 but will a criminal actual Sawyer, S., 200, prosecution, U. deprived right the accused is about to be threatened, where protect property conduct a lawful business when Raich, Truax 239 Morrow v. S., 33; U. injury. from irreparable Saxon, Atlanta, Shellman v. Ga., 228, E., 162; Ga., S. be L. A. 452. “And a similar E., 438, (N. S.), injury may
67 S. 27 R. officer, relief, and there exist when inflicted, ground equitable its statute, transcending that he has the warrant is insisting bounds, unlawfully assuming power govern thus exercise the of an owner, guilty private ment the individual is invasion Stimson, Co. Philadelphia S., U. property.” business, livelihood, to conduct a lawful or to earn a Harris, Jur., 746; as fundamental. S. v. 19 Am. regarded heard. not now concerned entitled We are If good charge. can, with whether he can make he is entitled If vindicated. cannot, relief. the defendants JJ., join this opinion. BaeNhiix WiNbobNE,