Orange Speedway, Inc. v. Clayton , 247 N.C. 528 ( 1958 )

101 S.E.2d 406 (1958) 247 N.C. 528

ORANGE SPEEDWAY, Inc.
v.
Odell H. CLAYTON, Sheriff of Orange County.

No. 744.

Supreme Court of North Carolina.

January 10, 1958.

Robert G. Sanders, J. C. Sedberry, Charlotte, for plaintiff.

Graham & Ranson, Hillsboro, for defendant.

DENNY, Justice.

Equity jurisdiction may be exercised to enjoin the threatened enforcement of a statute which contravenes our Constitution wherever it is essential in order to protect property rights and the rights of persons against injuries otherwise irremediable. McCormick v. Proctor, 217 N.C. 23, 6 S.E.2d 870; Dixie Poster Advertising Co. v. City of Asheville, 189 N.C. 737, 128 S.E. 149. See concurring opinions of Hoke, J., in Turner v. City of New Bern, 187 N.C. 541, 122 S.E. 469, and Stacy, C. J., in McCormick v. Proctor, supra. See also Terrace v. Thompson, 263 U.S. 197, 44 S.Ct. 15, 68 L.Ed. 255; Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131.

Among the findings of fact by the court below are these:

"4. That the plaintiff engages in the business of promoting and conducting motor vehicle races, particularly stock car races, on its privately owned race track in Orange County, State of North Carolina.

"6. That said Act, by its terms, is applicable only to Orange County, State of North Carolina.

"7. That in promoting, advertising, and conducting motor vehicle races on its race track in Orange County, the plaintiff, through its officers, servants and employees, engages in much detailed work and labor.

"8. That the servants and employees of the plaintiff are paid their wages for their work and labor from the profits derived from the operation of said race track.

"9. That the officers and stockholders of the plaintiff derive a substantial part of their income from the profits derived from the operation of said race track and the profits so received constitute a portion of the means of livelihood of said officers and stockholders.

"12. That some of the auto racing car drivers who have participated in races on the track of the plaintiff in Orange County, before the passage of said Act earn(ed) all or a large part of their means of livelihood from their trade or calling of driving automobiles in racing meets.

"13. That the defendant herein has threatened and now threatens to initiate criminal prosecutions against the officers, servants and employees of the plaintiff, and the professional racing car drivers, and all others who participate in promoting, conducting, or engaging in an automobile race on the plaintiff's race course in Orange County.

"14. That the said Act of the General Assembly, under consideration herein, places upon those who would engage in the trade or business of promoting and conducting automobile races in Orange County, burdens, duties and liabilities."

The Act under consideration applies only to Orange County and is a local Act. Even so, it is not unconstitutional merely because it is local unless it is violative of some provision of our Constitution.

In the case of State v. Ricketts, 74 N.C. 187, it is said: "In this State in general every act may lawfully be done on Sunday which may lawfully be done on any other day, unless there may be some act of the Legislature forbidding it to be done on that day." White v. Morris, 107 N.C. 92, 12 S.E. 80; State v. Penley, 107 N.C. 808, 12 S.E. 455; Taylor v. Ervin, 119 N.C. 274, 25 S.E. 875; Rodman v. Robinson, 134 N.C. 503, 47 S.E. 19, 65 L.R.A. 682, 101 Am.St. Rep. 877.

There is no general statutory law in North Carolina authorizing, forbidding or regulating automobile or motorcycle races, promoted and conducted on privately owned race tracks or courses, and therefore, the common law applies as the only general, state-wide law in North Carolina relating to automobile and motorcycle races on privately owned race tracks. G.S. § 4-1; Redding v. Redding, 235 N.C. 638, 70 S.E.2d 676; State v. Hampton, 210 N.C. 283, 186 S.E. 251. There is a statewide act with respect to racing on streets and highways in this State, Chapter 1358 of the Session Laws of 1957, now codified as G.S. § 20-141.3, but it has no application to the facts in this case.

There is also a local statute in effect in Wake County, North Carolina, Chapter 177 of the Session Laws of 1949, which we upheld in the case of State v. Chestnutt, 241 N.C. 401, 85 S.E.2d 297, 298. The pertinent part of this local Act is to the effect that, "It shall be unlawful for any person, firm, or corporation to engage in, promote, or in anywise participate in any motorcycle or other motor vehicle race or races on Sunday in Wake County, North Carolina." Bobbitt, J., speaking for the Court, said: "The statute does not disclose a purpose to regulate labor or trade. The purpose of the promotion may be recreation, sport or charity; or it may be a business venture, for profit. The participants may be volunteers or compensated, amateurs or professionals. The race may be widely advertised, drawing large crowds; or it may arise upon a sudden challenge and be known and of interest only to the participants.* * *

"Were the statute directed solely against labor, e. g., compensated employment, or trade, e. g., business ventures, for profit, in relation to the conduct of motor vehicle races on Sunday in Wake County, the question posed would be serious indeed. But where the statute in sweeping terms bans an activity, to wit, all motor vehicle races on Sunday in Wake County, making it a mis demeanor to promote or engage in the proscribed activity, without regard to the commercial or noncommercial character of the activity, the fact that these defendants promote and engage in such activity for profit and for compensation puts them in no better position than those who promote and engage in such activity without reference to profit or compensation."

It would seem to be unreasonable to suppose that any person, firm or corporation would construct and maintain a race track in Orange County and procure the insurance coverage required by Chapter 588 of the Session Laws of 1957, unless such person, firm or corporation was engaged in the business of racing for profit. In fact, the defendant concedes in its brief that the Act "had for its object the regulation of motorcycyle and auto racing in Orange County * * *" A trade within the meaning of our tax laws, as well as within the meaning of Article II, Section 29 of our Constitution, includes any employment or business embarked in for gain or profit. State v. Worth, 116 N.C. 1007, 21 S.E. 204; State v. Dixon, 215 N.C. 161, 1 S.E.2d 521.

Therefore, it seems clear to us that the Act under consideration on this appeal is not concerned with the act of racing per se, as was the case in State v. Chestnutt, supra, but is aimed at the "persons, firms or corporations promoting, holding, staging, presenting or otherwise being responsible" for racing events.

Hence, in our opinion, the purpose of the Act under consideration is the regulation of the trade or business of promoting and conducting motorcycle or motor vehicle races for profit in Orange County, North Carolina, and we so hold. Moreover, we think the facts found by the court below support this conclusion.

Article II, Section 29 of the Constitution of North Carolina, in pertinent part, provides: "The General Assembly shall not pass any local, private, or special act or resolution * * * regulating labor, trade, mining, or manufacturing; * * * Any local, private or special act or resoultion passed in violation of the provisions of this section shall be void. The General Assembly shall have power to pass general laws regulating matters set out in this section."

In view of the conclusions we have reached, we hold the statute challenged on this appeal is in conflict with Article II, Section 29 of the Constitution of North Carolina and is, therefore, null and void. State ex rel. Taylor v. Carolina Racing Ass'n, 241 N.C. 80, 84 S.E.2d 390; Carolina-Virginia Coastal Highway v. Coastal Turnpike Authority, 237 N.C. 52, 74 S.E. 2d 310; Lamb v. Board of Education, 235 N.C. 377, 70 S.E.2d 201; Idol v. Street, 233 N.C. 730, 65 S.E.2d 313; Sams v. Board of Com'rs of Madison County, 217 N.C. 284, 7 S.E.2d 540; State v. Dixon, supra. Cf. Crook v. Commonwealth, 147 Va. 593, 136 S.E. 565, 50 A.L.R. 1043.

The judgment of the court below is

Reversed.