City of Reidsville v. Slade

WiNBORNE, J. Careful consideration of the five questions involved on this appeal, as stated in brief of defendants, appellants, fails to disclose error for which the judgment below may be disturbed. 1. At the outset defendants contend that Sink, J., was without jurisdiction, at the time he acted, to vacate or modify the temporary injunction made by Carr, J. If an injunction be granted without notice, as in this case, it is provided by statute, G. S., 1-498, formerly O. S., 8.56, that the defendant, that is, the party enjoined, “at any time before the trial, may apply, upon notice to be fixed by court of not less than two nor more than ten days, to the judge having jurisdiction, to vacate or modify the same, if he is within the district or in an adjoining district, but if out of the district and not in an adjoining district, then before any judge who is at the time in the district, and if there is no judge in the district, before any judge in an adjoining district.” Ooncededly, Sink, the regular judge of the Superior Court resident of the Twelfth Judicial District, was not in the Twenty-first Judicial District in which this action is pending at the time he signed the orders in question, but he was at that time the judge regularly assigned, under the rotation system in this State, to hold the courts of the Twenty-first District, and he was in an adjoining district. Was he then under these facts “the judge having jurisdiction”? We so hold. Under the statute relating to rotation of judges, G. S., 7-14, formerly 0. S., 1446, a judg'e assigned to a district is the judge therefor for six months beginning 1 January and July as the case may be. Hamilton v. Icard, 112 N. C., 589, 17 S. E., 519. Within the period of such assignment the judge so assigned to a district has jurisdiction of all “in Chambers” matters arising in the district. See Shepard v. Leonard, 223 N. C., 110, 25 S. E. (2d), 445. Moreover, “the judge assigned to the district” is specifically designated by statute as one of the judges to whom all restraining orders and injunctions shall be made returnable. G. S., 1-494, formerly C. S., 852. Further, in applying the statute this Court held in the case of Hamilton v. Icard, supra, that where a restraining order was made returnable before a judge assigned to the district at a place outside of the district and after the courts were over, but before the end of the term of the assignment, such judge had jurisdiction to hear the application and to grant injunction until the hearing. It is clear, therefore, that Sink, J., was a judge having jurisdiction to vacate or modify the temporary injunction which had been issued without notice. 2. It is contended that Sink, J., for lack of jurisdiction, erred in denying to defendants right of appeal to Supreme Court from his order *55 of 24 December, 1943, overruling their motion (a) to set aside and vacate his order of 20 December, 1943, and (b) to dismiss motion of plaintiff to dissolve the restraining order of Carr, J. The appeal is here, and the challenge is considered in this Court. Hence, the question is now moot. Nevertheless, upon the facts of record no error appears. See G. S., 40-19, formerly C. S., 1723; Rev., 2587; Code, 1946; and compare R. R. v. Newton, 133 N. C., 132, 45 S. E., 549. 3. It is stated that assignment of error No. 5 is involved in this question. This assignment relates to the ruling of the court that the defendants in this, and the other condemnation suits, have elected by their respective motions to defend the actions in a court of equity, when the proper course of procedure in the courts of this State is by answer in each of the individual original actions. The ruling is no more than holding that the defendants have an adequate remedy at law, and that where there is a full, complete and adequate remedy at law, the equitable remedy of injunction will not lie. Whitford v. Bank, 207 N. C., 229, 176 S. E., 740. Moreover, injunction will not lie against the prosecution of condemnation proceeding when the matter relied upon as a ground therefor may be urged as a defense in the proceeding. See Annotations 133 A. L. R., 11, at pages 104 and 109, where authorities, including North Carolina cases, are assembled. Compare Retreat Asso. v. Development Co., 183 N. C., 43, 110 S. E., 524. 4. This is a question: Did the court err in holding that said airport is a necessity? The word “necessity” is not used in the sense of “necessary expenses” to which Article YII, section 7, of the Constitution of North Carolina relates, but in the sense that the airport in question is necessary to meet the public demand for transportation by air, which is “conditioned upon preparation of airport before the advanced means of transportation can be made available.” The contention that the finding of the city council that the airport is necessary is a manifest abuse of discretion, since the City of Reidsville is already provided with every necessary means required for public convenience and necessity of the traveling public and for the transportation of commerce, and since there are no public airplanes operating in and out of Reidsville, is similar to that made in the taxpayers’ suit, Turner v. Reidsville, ante, 42. There the court, disposing of it, holds that the construction, maintenance and operation of the airport in question here is for a public purpose to which with approval of a majority of the qualified voters which has been duly given public funds may be provided and used. Further elaboration would be repetitious. 5. The last question: Did the court err in dissolving the restraining order? Defendants contend that serious questions of fact substantially affecting their right to injunctive relief raised in their “petition and *56 motion” for restraining order are only denied by petitioner, if at all, through its further answer in the taxpayers’ suit which, over objection, the court permitted to be filed as an affidavit, and that this should be excluded as incompetent. In this connection it is sufficient to refer to the statute, G. S., 1-499, formerly O. S., 857, which provides that if the application for injunction is made upon affidavits on the part of the defendant, the plaintiff may oppose the same by affidavits or other proof. Also defendants contend that these additional grounds, as alleged, entitle them to a restraining order: (a) That the airport cannot be constructed for $100,000, hence the expenditure of that sum would be a waste of public funds; (b) that the airport is not for a public purpose; (c) that the tax sought to be levied for bonds and maintenance of the airport would be violation of Article V, section 3, of the Constitution of North Carolina that “taxes shall be levied only for public purposes”; and (d) that the taking of the property of defendants would be violative of the 14th Amendment to the Constitution of the .United States. In Turner v. Reidsville, ante, 42, each of these is treated and decided adversely to contentions here made. Further discussion is unnecessary. Defendants further contend that the taking of their property would be violative of Article I, section 17, of the Constitution of North Carolina, which provides that “no person ought to be ... in any manner deprived of his . . . property, but by the law of the land.” However, in the brief filed no argument is advanced as to wherein this provision of the Constitution is violated. It is further contended that the City has failed to negotiate with defendants for purchase of property sought to be condemned. It is noted, however, that the petition contains allegation as to its inability to acquire the title, to which the answer enters denial. This presents a question of fact for decision by the clerk, whose ruling is subject to review at the proper time by the judge on appeal. See Power Co. v. Moses, 191 N. C., 744, 133 S. E., 5, and cases cited. Lastly, the contention that as a part of the airport the city proposes to appropriate public highways, thereby depriving defendants of the use of them in connection with unappropriated lands. Even so, while this might be an element of damage, it is not cause for preventing a public project, such as the airport here involved is held to be. Thus, after full consideration of all questions presented, and arguments advanced, and authorities cited by appellants, the judgment below is Affirmed.