McCormick v. . Proctor

Stacy, C. J.,

concurring: The question for decision is whether a court of equity has the authority to hear the plaintiff on his allegation that the defendants herein, sheriff and chief of police, respectively, have, without warrant of law, threatened to destroy his legitimate business and will destroy it, to plaintiff’s irreparable damage, unless restrained. The answer is “Yes.”

The plaintiff alleges that he is engaged in a lawful business, operating and renting in Pitt County 100 vending machines, or amusement machines and coin-in-the-slot machines, “such as are legalized 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 and municipal taxes amounting to $3,600 for the privilege of engaging in the business; that the Attorney-General of the State has, in a formal opinion, declared the business of the plaintiff to be legal, and pursuant to this opinion the State Commissioner of Revenue has duly licensed the machines in question; that the defendants herein have threatened to seize the plaintiff’s machines “on sight” and will seize and confiscate them, to plaintiff’s irreparable injury, unless restrained by a court of equity to which he appeals for the protection of his property rights, and that plaintiff has no adequate remedy at law.

The court declined to hear any evidence, and the plaintiff’s appeal is from the refusal of the court to hear him. The judgment recites: “The court being of the opinion that it is without jurisdiction or authority in this cause . . . announced that' the court did not care to hear evidence as to the legality or illegality of said machines involved in the controversy.”

The case, then, comes to this: The State of North Carolina, by act of Assembly, authorizes the use and operation of certain slot machines (while prohibiting the use of others) and imposes a number of taxes for the privilege of engaging in such business. The plaintiff applies for licenses to engage in this business. They are granted to him on the advice of the Attorney-General of the State that his business is legal. He pays his taxes amounting to $3,600. The officers of the law threaten to seize his machines “on sight” and to confiscate his property. He appeals to the courts of the State for the protection of his property *31 rights. If the taxing authorities can afford to accept the plaintiff’s money and license his business as legitimate, it seems only just and fitting, ex cequo et bono, for the courts to say whether they are right or wrong. Advertising Co. v. Asheville, 189 N. C., 737 , 128 S. E., 149 ; Crawford v. Marion, 154 N. C., 73 , 69 S. E., 763 ; Terrace v. Thompson, 263 U. S., 197 ; Dobbins v. Los Angeles, 195 U. S., 223 . See dissenting opinion in Hinkle v. Scott, 211 N. C., 680 , 191 S. E., 512 , and concurring opinions in Turner v. New Bern, 187 N. C., 541 , 122 S. E., 469 ; and R. R. v. Goldsboro, 155 N. C., 356 , 71 S. E., 514 .

While the defendants do not allege that they are acting under authority of any warrant or by virtue of a criminal prosecution instituted against the plaintiff, still, as the trial court apparently thought otherwise, or so apprehended the record, it may not be amiss to observe that it is not after the manner of the courts of equity to close their doors on allegations of irreparable property loss, even in the face of a criminal prosecution, actual or threatened. Advertising Co. v. Asheville, supra; Clinard v. Winston-Salem, post, 119. The general rule is, that equity will not interfere with a criminal prosecution, merely as such, In re Sawyer, 124 U. S., 200 , but it will enjoin a criminal prosecution, actual or threatened, where the accused is about to be deprived of the right to conduct a lawful business or when necessary to protect property rights from irreparable injury. Truax v. Raich, 239 U. S., 33 ; Morrow v. Atlanta, 162 Ga., 228 , 133 S. E., 162 ; Shellman v. Saxon, 134 Ga., 29 , 67 S. E., 438 , 27 L. R. A. (N. S.), 452. “And a similar injury may be inflicted, and there may exist ground for equitable relief, when an officer, insisting that he has the warrant of the statute, is transcending its bounds, and thus unlawfully assuming to exercise the power of government against the individual owner, is guilty of an invasion of private property.” Philadelphia Co. v. Stimson, 223 U. S., 605 .

The right to conduct a lawful business, or to earn a livelihood, is regarded as fundamental. S. v. Harris, 216 N. C., 746 ; 19 Am. Jur., 144 . The plaintiff is entitled to be heard. We are not now concerned with whether he can make good his charge. If he can, he is entitled to relief. If he cannot, the defendants will be vindicated.

BaeNhiix and WiNbobNE, JJ., join in this opinion.