Thompson v. Town of Lumberton
108 S.E. 722
N.C.
1921
Check Treatment
Glakk, C. J.

An injunction does not lie to restrain the enforcement of an alleged invalid town ordinance. It has been uniformly held that equitable relief will not be granted in cases where there is an adequate and effectual remedy at law. Busbee v. Macy, 85 N. C., 329. It'has also been uniformly held that an injunction will not be granted to restrain the enforcement of the criminal law except when it is necessary to prevent irrevocable injury to, or destruction of, property or to protect the defendant from oppressive and vexatious litigation. In the latter case, the courts will grant an injunction only after the controverted right has been determined in favor of the defendant in a previous action.

Every violation of a town ordinance is by statute a misdemeanor, and if the courts should issue an injunction against the enforcement of an ordinance it would be an interference with the administration of the criminal law. When the defendant is put on trial for violation of the ordinance he has full opportunity to test its validity. This has been often presented to the Court, and the decisions are so clear' and uniform as to leave the matter no longer debatable.

In Cohen v. Goldsboro, 77 N. C., 2, that town had adopted an ordinance forbidding the sale of fresh meat, except under restrictions prescribed in the ordinance. The defendants were arrested and fined for its violation, and as a result were forced to suspend their business. They sought to restrain the enforcement of the ordinance, and Beade, J., said: “If the defendants have an unlawful ordinance, and have arrested *263 and fined tbe iDlaintiffs, as tbey allege, tbe plaintiffs have complete redress in an action for damages. And, as often as tbe arrest may be repeated, tbey bave tbe like redress; but we are aware of no principle or preeendent for interposition of a court of equity in sucb cases. Tbe injunction is dissolved, and tbe case remanded.” To this we might add that tbe defendant could set up tbe defense of tbe invalidity of tbe ordinance wben arrested and put on trial, and bas tbe right of appeal should tbe matter be decided against him.

In Wardens v. Washington, 109 N. C., 21, an injunction was sought against tbe enforcement of an ordinance prohibiting the burial of .thq dead within tbe corporate limits of that town, except upon a permit from tbe, town clerk, which could be given only upon a prescribed certificate from tbe attendant physician, and violation of tbe ordinance was made punishable by a fine of $50. Tbe Court refused to pass upon tbe validity of tbe ordinance, or restrain its enforcement, saying: “It is unnecessary, however, to pass upon the' question as to tbe power of tbe Legislature to authorize or to validate tbe ordinance in tbe exercise of tbe police power inherent in the State, for we bave an express authority, if one were needed, that an injunction does not lie to prevent tbe enforcement of an alleged unlawful town ordinance,” adding that tbe plaintiff bad bis remedy by an action for damages, and saying further, “if tbe plaintiffs, or any one else, should violate tbe ordinance, upon a criminal prosecution for sucb violation the validity of tbe ordinance and of tbe act of tbe Legislature authorizing and validating it would come directly and properly before tbe Court.”

Tbe same question was again presented in Scott v. Smith, 121 N. C., 94, where tbe ordinance sought to be enjoined made it unlawful to play baseball in town without tbe mayor’s permission. Tbe Court said: “If tbe ordinance is lawful and valid, as insisted by tbe defendants, tbe plaintiff bas no cause of complaint, and can maintain no form of civil action. If it is void, as insisted by tbe plaintiff, then be bas misconceived bis remedy, for a court of equity will not interpose wben the plaintiff bas a remedy at law by civil action for damages, and in a criminal action also tbe validity of tbe ordinance would be presented.”

In Vickers v. Durham, 132 N. C., 880, tbe ordinance was attacked upon tbe ground that tbe statute under which tbe city proposed to condemn tbe plaintiff’s land was unconstitutional. Tbe court refused to sustain tbe injunction for tbe reason that tbe plaintiff bad bis remedy at law.

In Paul v. Washington, 134 N. C., 369, tbe plaintiff undertook to distinguish bis case from tbe principles above cited upon tbe ground that be bad no adequate remedy at law because of tbe well settled doctrine that municipal corporations are not liable for torts committed *264 by tbeir officers when undertaking to enforce unconstitutional and void ordinances enacted in tbe attempted exercise of tbe police power; and also because tbe policeman wbo arrested tbe plaintiff was insolvent and contended tbat since neither tbe town nor its policemen could be beld responsible in damages, tbe plaintiff bad no remedy except by injunction. On tbis tbe Court ruled tbat tbe law bad been correctly laid down in tbe above cases, and tbat an injunction was not tbe remedy to test tbe validity of a municipal ordinance.

In S. v. R. R., 145 N. C., 521, in wbicb tbe whole matter was fully considered, tbe Court beld tbat it is well settled, both in England and in America tbat a court of equity has no jurisdiction to interfere with by injunction or to restrain a criminal prosecution, whether tbe prosecution be for the violation of a statute, or for an infraction of a municipal ordinance, and tbat tbis rule applies whether the prosecution is by indictment or by summary process and whether it has been merely threatened or has already been commenced.

Tbe plaintiff contends, however, tbat tbe intention of tbe board of commissioners in enacting said ordinance was to levy a tax not to provide a police regulation, but tbe intention can be ascertained only from tbe face of tbe ordinance itself. It has been uniformly beld, without a dissent, tbat evidence cannot be received to explain or qualify an act of tbe General Assembly, and even a member of tbat body will not be permitted to aid tbe Court by testifying as to tbe purpose of tbe governing body in enacting tbe statute. Tbis would seem to apply equally to tbe passage of an ordinance by tbe lawmaking body of a town.

The court found as a fact tbat tbis ordinance was enacted both for tbe purpose of regulating automobiles and to lay a license tax upon those not used for hire, and tbe plaintiffs contend, therefore, tbat an injunction will lie against tbe levy of. tbe -tax. But if tbis finding of fact were adopted by us, still tbe ordinance being in part a police regulation, tbe injunction would not lie.

In view of tbe vast number of automobiles and tbe great danger from lack of adequate supervision in cities and towns, both from tbe danger of collisions and to pedestrians, and to tbe morals of tbe community there is hardly any subject wbicb more imperatively demands tbe exercise of tbe police power. Last year in tbis country there were 92,000 injuries and deaths sustained in tbe operation of automobiles. Tbis is an aggregate of casualties in a year nearly double tbat sustained by tbis country during tbe entire duration of tbe World War.

■ Tbe ordinance in tbis case is not in conflict with any statute, and is authorized under tbe general provisions of tbe defendant’s charter, and is reasonable. Tbe charter of defendant’s town as reenacted and Amended by cb. 343, Laws 1907, contains secs. 45 and 46 as follows: *265 “See. 45. The mayor and board of commissioners shall have power to enact such rules, regulations, ordinances and by-laws as they may deem necessary to secure the peace and good government of said town, and to enforce the same by imprisonment, fine or penalty, and the ordinances enacted by the said board, with the pains and penalties pertaining thereto, may be enforced within the corporate limits of the said town, and for one mile beyond and around said corporate limits.

“Sec. 46. Said mayor and board of commissioners, in addition to the powers which they possess by law, and which are conferred upon them by this chafrter, shall particularly have power to enact ordinances and to enforce same by imprisonment, fine or penalty as follows: ‘To prevent vice and immorality, to preserve public peace and good order, to prevent and quell riots, disturbances and disorderly conduct.’ ”

Without elaborating the instances in which the uncontrolled and unrestrained operation of automobiles would violate the public peace and good order and might tend to promote vice and immorality and increase disorderly conduct, it is clear that the defendant is authorized by its charter to pass this ordinance.

The plaintiff was doubtless relying upon the decision in S. v. Fink, 179 N. C., 714, which held that under the Eevenue Act of 1919 the provision prohibiting cities and towns from charging any license fee for driving or operating automobiles greater than $1, such tax was void. That decision was correct, and compelled by the language of the Eevenue Act of 1919, but the General Assembly in 1921 added the following provisos to the section construed in S. v. Fink: “Provided nothing herein shall prevent the governing authorities of any city from regulating licenses controlling of chauffeurs and drivers of any car or vehicle and charging a reasonable- fee." And provided further, that any city or town may charge a license not to exceed $50 for any motor vehicle used in transporting persons or property for hire in lieu of all other charges, fees 'and licenses now charged.”

The effect of this amendment was to authorize the city to regulate and control the conduct of chauffeurs of, automobiles and the drivers of all other vehicles and to impose a reasonable license fee, which we deem was not exceeded by the requirements of the payment of a license tax of $5. Even if this ordinance were enacted solely as a revenue measure, $5 is not an unreasonable amount to be levied as a tax and license fee on pleasure or other motor vehicles when $50 is authorized as a tax upon those motors engaged in transportation for hire.

Inasmuch as an injunction does not lie to test the validity of a town ordinance, we not only reverse the judgment, but must dismiss the action.

Action dismissed.