Bailey v. . Bryson

198 S.E. 622, 214 N.C. 212, 1938 N.C. LEXIS 302

• Court: Supreme Court of North Carolina
• Decided: September 28, 1938
• Status: Published

Opinion

WiNbokne, J.

The appellant, David N. Cabe, excepted to the judgment entered below, and, on this appeal, assigns as error the signing of the judgment. This is the only question presented. The assignment is not tenable.

The act relating to the setting up and operating county liquor control stores requires as condition precedent that the question be submitted to and approved by the qualified voters of such county, at an election called “by the board of elections of such county only upon the written request of the board of county commissioners therein, or upon a petition to said board of elections signed by at least fifteen per centum of the registered voters in said county that voted in the last election for Governor.” Section 25, chapter 49, Public Laws 1937.

On the findings of fact, to which there is no exception, the court below properly continued the injunction to the hearing.

“Where the main purpose of an act is to obtain a permanent injunction and the evidence raises serious question as to the existence of facts which if established would entitle the plaintiff to the relief demanded, the usual practice is to continue the temporary restraining order to the hearing.” Springs v. Refining Co., 205 N. C., 444, 171 S. E., 635, and cases there cited.

Whether the defendants will be able to show at the trial that the signers of the petition have the qualifications required by the statute is not now before this Court.

The judgment below is

Affirmed.

ClaRksoN and DeviN, JJ., concur in this result.