The opinion
Clarkson, J.,
dissenting: This case presents the same question as was decided in Newman et al. v. Comrs. of Vance et al., 208 N. C., 675 . In that case I dissented, as I do in this case, saying (at p. 678) : “I *6 think the act unconstitutional as impinging four articles of the Constitution of North Carolina, and void for uncertainty, and injunctive relief should have been granted.”
I think that the question of the unconstitutionality of the act was duly raised and plaintiffs were deprived of rights guaranteed by the Constitution and were entitled to injunctive relief, and the allegations in the complaint of plaintiffs fully sufficient to grant the relief prayed for.
This is a government founded on the consent of the governed, subject to constitutional limitations. It is the best so far established by the human family to preserve an orderly system of government so as to insure peace, order, and good government. In violation of the Constitution and in the face of a popular vote, inaugurated by those desiring wet delegates to a convention to repeal the 18th Amendment, the dry delegates won by a majority of 184,576, yet notwithstanding this the Pasquotank Liquor Act was passed.
This State was the first to declare an act of the General Assembly unconstitutional. In Bayard v. Singleton, Vol. 1, N. C. Reports, 5 (November Term, 1787), p. 45, it is said: “Put there it was clear, that no act they could pass, could by any means repeal or alter the constitution, because if they could do this, they would at the same instant of time destroy their own existence as a Legislature, and dissolve the government thereby established. Consequently, the Constitution (which the judicial power was bound to take notice of as much as of any other law whatever), standing in full force as the fundamental law of the land, notwithstanding the act on which the present motion was grounded, the same act must, of course, in that instance, stand as abrogated and without any effect.”
In Marbury v. Madison, 1 Cranch, 137 (February Term, 1803), the Supreme Court of the United States said, p. 180: “It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank. Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the Constitution is void; and that courts, as well as other departments, are bound by that instrument.” At p. 163, we find: “The Government of the United States has been emphatically termed a government of laws, and not of men.”
I think the action should not be dismissed, but should be reversed on plaintiffs’ appeal, and no error on defendants’ appeal.