Lanier v. Town of Warsaw , 226 N.C. 637 ( 1946 )

Winborne, J.

It is a general principle of law that injunction does not lie to restrain the enforcement of an alleged invalid municipal ordinance, and ordinarily the validity of such ordinance may not be tested by injunction. Thompson v. Lumberton, 182 N. C., 260, 108 S. E., 722; Turner v. New Bern, 187 N. C., 541, 122 S. E., 469; Flemming v. Asheville, 205 N. C., 765, 172 S. E., 362; Suddreth v. Charlotte, 223 N. C., 630, 27 S. E. (2d), 650; Jarrell v. Snow, 225 N. C., 430, 35 S. E. (2d), 273.

However, this principle is subject to the exception that equity will enjoin a threatened enforcement of an alleged unconstitutional ordinance when it is manifest that otherwise property rights or the rights of persons would suffer irreparable injury. Advertising Co. v. Asheville, 189 N. C., 737, 128 S. E., 149. See also Clinard v. Winston-Salem, 217 N. C., 119, 6 S. E. (2d), 867, and cases cited.

In the present action we are of opinion that the general principle is applicable, and that the case does not come within the limits of the exception thereto. Such was-the case in Suddreth v. Charlotte, supra, where an ordinance pertaining to the licensing and regulation of taxicabs operated for hire was under consideration. There this Court adhered to the general principle but in its discretion expressed an opinion on the merits of the case, which is pertinent to ease in hand.

The judgment below is

Affirmed.