Garrison v. Miller , 40 N.C. App. 393 ( 1979 )

CARLTON, Judge.

Counsel for plaintiff and defendants expressed their desire that this Court fully address the merits of the action. We are precluded from doing so by prevailing law.

We think the case at bar is clearly controlled by the decision of our Supreme Court in Union Carbide Corp. v. Davis, 253 N.C. 324, 116 S.E. 2d 792 (1960) and other similar cases. Justice Higgins succinctly stated the salient principles pertinent to the instant action: (1) Courts should pass on constitutional questions when, but only when, they are squarely presented and necessary to the disposition of the matter then pending; (2) The jurisdiction of appellate courts is derivative. Questions of law or legal inference come to it for purposes of review. If the lower court has no jurisdiction, the appellate court cannot acquire jurisdiction by appeal; (3) The constitutionality of a statute will not be determined in collateral proceedings, on preliminary motions, or on interlocutory orders; (4) Trial courts grant or deny injunctions upon the evidence presented. The only question is whether the order should be made, dissolved or continued. It cannot go further and determine the final rights of the parties, that being reserved for the final trial of the action. Union Carbide Corp. v. Davis, supra at 327, 116 S.E. 2d at 794.

At the show cause hearing, the only question presented to the superior court was whether the temporary injunction should be continued to the hearing. Judge Davis went beyond the scope of his authority and declared the policy unconstitutional.

Our holding cannot be different because the parties consented that the court “could issue such further orders or judgments as the Court may deem appropriate out of term and out of district.” The Supreme Court has resolved that question also. In MacRae & Co., Inc. v. Shew, 220 N.C. 516, 17 S.E. 2d 664 (1941) the parties agreed that the court might “either make the temporary order permanent or dissolve it at this hearing.” The Court held, “However, since the judgment entered was beyond the jurisdiction of the judge sitting at chambers, such jurisdiction could not be conferred by agreement . . . .” 220 N.C. at 518, 17 S.E. 2d at 665.

We are impressed by plaintiff’s argument that the trial court probably had as much information before it at the show cause hearing as it would at the final hearing. However, it is not our prerogative to overrule firmly-stated principles enunciated by the Supreme Court; nor are we inclined to do so. A final ruling on this action would have obvious statewide ramifications on athletic eligibility in our secondary schools. It may well be that the ends of justice will be better met if, at final hearing, the trial court has before it evidence of athletic eligibility with respect to transferees from other administrative units across the state.

We hold that the trial court had sufficient evidence before it to support the findings of fact and conclusions of law in continuing the temporary injunction. However, the court went beyond its jurisdiction in ruling that the policy was unconstitutional.

The result is that the judgment must be modified so as to extend no further than to continue the temporary injunction to the final hearing.

The cause is remanded for judgment in accord with this opinion.

Modified and remanded.

Judges Vaughn and Hedrick concur.