REVEREND JAMES R. WALKER, JR. v. CITY OF CHARLOTTE, and WILLIAM H. JAMISON, Superintendent of Building Inspection; and THOMAS B. LACKEY, Chief Housing Inspector for the City of Charlotte, 262 N.C. 697

PabiceR, J. Plaintiff in his brief states that the one question presented for decision is: Did Judge Clark commit prejudicial error in denying him a temporary restraining order enjoining defendants from further criminal prosecution of him for alleged violations of the housing provisions of the code of the city of Charlotte until the final determination of his suit? G.S. 14-4 makes the violation of a municipal ordinance a criminal offense.

It is a general principle of well-established law that when a statute is enacted or a municipal ordinance is adopted regulating the doing of certain acts and making the violation thereof a criminal offense, an injunction will not ordinarily issue to restrain the enforcement of the statute or municipal ordinance on the ground of its alleged unconstitutionality.

This general rule is based, in addition to other considerations, on the principle that equity is concerned only with the protection of civil and property rights, and is intended to supplement, and not usurp, the functions of the courts of law, and on the fact that the party has an adequate remedy at law, because if he is prosecuted for the violation of a statute or a municipal ordinance that is unconstitutional, its unconstitutionality is a complete defense upon a prosecution in the courts for its violation, and in case of a conviction, there can be an appeal. Surplus Store, Inc. v.

Hunter, 257 N.C. 206, 125 S.E. 2d 764; Roller v. Allen, 245 N.C. 516, 96 S.E. 2d 851; Fox v. Commissioners of Durham, 244 N.C. 497, 94 S.E. 2d 482; Lanier v. Warsaw, 226 N.C. 637, 39 S.E. 2d 817; Jarrell v. Snow, 225 N.C. 430, 35 S.E. 2d 273; Loose-Wiles Bis cuit Co. v. Sanford, 200 N.C. 467, 157 S.E. 432; Turner v. New Bern, 187 N.C. 541, 122 S.E. 469; Wardens v. Washington, 109 N.C. 21, 13 S.E. 700; Cohen v. Commissioners, 77 N.C. 2; Strong’s N. C. Index, Vol. 2, Injunctions, § 5; McIntosh, N. C. Practice and Procedure, 2d Ed., Vol. 2, § 2200; Cline v. Frink Dairy Co., 274 U.S. 445, 71 L. Ed. 1146; Fenner v.

Boykin, 271 U.S. 240, 70 L. Ed. 927; Hygrade Provision Co. v. Sherman, 266 U.S. 497, 69 L. Ed. 402; Packard v. Banton, 264 U.S. 140, 68 L. Ed. 596; 28 Am. Jur., Injunctions, § 242 (1959); 43 C.J.S., Injunctions, §§ 156, 159, and 160. There is an exception' to this general rule, as well established as the rule itself, that equity will enjoin the actual or threatened enforcement of an alleged unconstitutional statute or municipal ordinance, when it plainly appears that otherwise there is danger that property rights or the rights of persons will suffer irreparable injury which is both great and immediate.

Surplus Store, Inc. v. Hunter, supra; Roller v. Allen, supra; Lanier v. Warsaw, supra; Loose-Wiles Biscuit Co. v. Sanford, supra; Cline v. Frink Dairy Co., supra; Fenner v. Boykin, supra; Hygrade Provision Co. v. Sherman, supra; Packard v. Banton, supra; McIntosh, N. C. Practice and Procedure, 2d Ed., Vol. 2, §§ 2200 and 2201; 43 C.J.S., Injunctions, §§ 157 and 158.

While plaintiff alleges in his complaint that he has been prosecuted one time for a violation of the housing provisions of the code of the city of Charlotte, and unless the defendants are enjoined he will be further prosecuted for similar offenses by the defendants, he fails to allege or to show that defendants have engaged in vexatious and oppressive prosecutions of him for an alleged violation of the housing provisions of the code of the city of Charlotte.

According to the allegations of plaintiff’s complaint, the dwelling he owns in the city of Charlotte was formerly a frame church and was converted into a dwelling house in 1901; that at present it is vacant, and its porch, windows, and doors have been extensively damaged by hoodlums; the cost of repairs and alterations will be more than 50% of its listed value for taxation; but that it is well suited for human habitation, a non sequitur conclusion.

However, plaintiff further alleges in his complaint that defendants, after notice to him and a hearing, found as a fact that his house was unfit for human habitation as being beyond reasonable repair; is open and unoccupied; and is dangerous to the health or lives of the general public and persons living in the vicinity, and presents a hazard to children who play in and around it; and has been declared unsafe and condemned by defendants, and ordered removed or demolished.

With such conflicting allegations of fact in his complaint about the condition of;his. house, plaintiff has not made it plainly appear that there is danger his property rights will suffer irreparable injury which is both great and immediate if a temporary injunction as prayed by him is not granted. Further, Judge Clark restrained defendants from demolishing his dwelling until the final determination of this action, and defendants did not appeal. Plaintiff has totally failed to allege or to show facts as to how his health will be impaired if a temporary injunction as requested by him is not granted.

It seems plain that plaintiff has completely failed to allege or to show facts that there is danger that his civil rights, his desire to further prepare himself for the ministry, and to earn a living by practicing law will suffer irreparable damage both great and immediate, unless he can repair his dwelling in the condition he alleges it is now in and live in it, and unless a temporary injunction as requested by him is granted. Surely, the enjoyment by him of his fundamental human rights cannot be made to rest merely on such fragile foundations.

Plaintiff has completely failed to show such circumstances as to warrant the exercise by equity of its injunctive power. It is manifest that a court of law in a criminal prosecution can and will afford plaintiff an adequate legal remedy to test the constitutionality of the State statutes and municipal ordinances which he challenges here. The order of Judge Clark is Affirmed.