{ "id": 8626444, "name": "RALPH D. CHADWICK and OLIVE WILLIS v. HUGH SALTER, SHERIFF OF CARTERET COUNTY, CARTERET COUNTY and THOMAS WADE BRUTON, ATTORNEY GENERAL OF NORTH CAROLINA", "name_abbreviation": "Chadwick v. Salter", "decision_date": "1961-04-12", "docket_number": "", "first_page": "389", "last_page": "398", "citations": [ { "type": "official", "cite": "254 N.C. 389" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "87 S.E. 976", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "171 N.C. 98", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269213 ], "opinion_index": 0, "case_paths": [ "/nc/171/0098-01" ] }, { "cite": "152 U.S. 133", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3574181 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/152/0133-01" ] }, { "cite": "51 S.E. 992", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "139 N.C. 219", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652429 ], "opinion_index": 0, "case_paths": [ "/nc/139/0219-01" ] }, { "cite": "89 S.E. 2d 144", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "242 N.C. 584", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619395 ], "opinion_index": 0, "case_paths": [ "/nc/242/0584-01" ] }, { "cite": "89 S.E. 2d 290", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "242 N.C. 612", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620922 ], "opinion_index": 0, "case_paths": [ "/nc/242/0612-01" ] }, { "cite": "195 S.E. 49", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "213 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626170 ], "opinion_index": 0, "case_paths": [ "/nc/213/0001-01" ] }, { "cite": "96 S.E. 2d 851", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "245 N.C. 516", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614074 ], "pin_cites": [ { "page": "518" } ], "opinion_index": 0, "case_paths": [ "/nc/245/0516-01" ] }, { "cite": "27 S.E. 2d 650", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "223 N.C. 630", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614808 ], "opinion_index": 0, "case_paths": [ "/nc/223/0630-01" ] }, { "cite": "35 S.E. 2d 273", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "225 N.C. 430", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610520 ], "opinion_index": 0, "case_paths": [ "/nc/225/0430-01" ] }, { "cite": "46 S.E. 2d 860", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "228 N.C. 664", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628020 ], "opinion_index": 0, "case_paths": [ "/nc/228/0664-01" ] } ], "analysis": { "cardinality": 976, "char_count": 23647, "ocr_confidence": 0.553, "pagerank": { "raw": 1.66737837691408e-07, "percentile": 0.695390155951177 }, "sha256": "8d2cadf986ae31f17cb5cfc2ca598f2271fe21ee1ef17caea195c6e965ce62cf", "simhash": "1:b5e7db7546adee69", "word_count": 3904 }, "last_updated": "2023-07-14T21:52:35.681015+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "RALPH D. CHADWICK and OLIVE WILLIS v. HUGH SALTER, SHERIFF OF CARTERET COUNTY, CARTERET COUNTY and THOMAS WADE BRUTON, ATTORNEY GENERAL OF NORTH CAROLINA." ], "opinions": [ { "text": "Bobbitt, J.\nAdmissions in the pleadings establish these facts: (1) Shackleford Banks (Carteret County) is between Beaufort Inlet and Barden's Inlet, being a portion of the Outer Banks between Beaufort Inlet and Ocracoke Inlet. (2) The land comprising Shackleford Banks is owned by private individuals. (3) Plaintiffs own and have approximately thirty head of cattle (cows, bulls and calves) on Shackle-ford Banks. (4) Defendants, by virtue of said 1957 and 1959 statutes, assert they have the right to destroy plaintiffs\u2019 said cattle or to remove them from Shackleford Banks.\nThe judgment is based upon a finding that the facts relating to plaintiffs\u2019 cattle \u201care substantially as set forth in the complaint.\u201d (Our italics.) In addition to the facts stated above, the complaint alleges that plaintiffs have kept their cattle on Shackleford Banks over the years and do so now with the permission or acquiescence of the (private) owners of the land. No findings were made as to other factual matters alleged in defendants\u2019 further answer and in plaintiffs\u2019 reply thereto.\nThe allegations in defendants\u2019 further answer and in plaintiffs\u2019 reply thereto are in accord as to these facts: For many years, cattle have been permitted to run at large on the Outer Banks, including Shackle-ford Banks, and have been and are now dependent for their sustenance on whatever provision has been made by Mother Nature herself, \u201cwithout any other or outside assistance.\u201d\nConflicting allegations, as to which the court made no findings of fact, are as follows:\n1. Defendants allege: (a) The cattle, in search for provender, \u201ceat all green plant life that the beaches or banks land, where they roana, afford, or at least so much thereof as their stomachs will accommodate\u201d; (b) they have no shelter or protection from harmful weather conditions, even in winter; (c) they are not treated for ticks and other insects abounding on the Outer Banks; (d) they are given no care whatsoever and at times, through neglect, are reduced to such state of want \u201cas to make them literally walking skeletons\u201d; and (e) they have no appreciable market value.\n2. Plaintiffs\u2019 reply: (a) The cattle \u201cremain almost altogether on the north or lagoon side of the banks and live and feed mainly and almost altogether in and on the open marshes.\u201d (b) The natural condition of the marshes and myrtle bushes on the Outer Banks provide sufficient protection against \u201cmost any weather conditions.\u201d (c) The cattle swim in the salt waters of the Sound and Creeks daily and \u201cneed no veterinarian treatment for ticks or other insects.\u201d (d) Mother Nature herself has amply and abundantly provided for the cattle, which are as healthy and fat \u201cas those cattle which have been fed by the human hand.\u201d (e) \u201c. . . when the cattle became grown and plump,\u201d plaintiffs, and other owners of such cattle, have removed them from time to time and sold them on the open market at a price substantially the same as that brought by cattle raised on the mainland, averaging at least $75.00 per cow. In addition, plaintiffs allege the damage to the Outer Banks has not been caused by the roaming of cattle thereon, a condition that has existed for over one hundred years, but that the serious damage to the Outer Banks has occurred \u201csince the year 1954, with the advent of Hurricane Hazel.\u201d\nPrior to the enactment of the 1957 Act now challenged by plaintiffs, the General Assembly of 1957 enacted (S.L. 1957, c. 995) \u201cAN ACT TO PREVENT DAMAGE OR DESTRUCTION TO SAND DUNES ALONG THE OUTER BANKS OF NORTH CAROLINA.\u201d It declares unlawful and a misdemeanor, punishable as provided therein, \u201cfor any person ... to damage, destroy, or remove any sapd dune, or part thereof, lying along the outer banks of this State or to destroy or remove any trees, shrubbery, grass or other vegetation growing on said dunes unless such person . . . shall have first obtained a permit authorizing such proposed destruction or removal.\u201d It provides such permit may be granted by a municipal or county governing body if it \u201cshall find as a fact that the particular damage, destruction or removal proposed will not materially weaken the dune as a means of protection from the effects of high wind and water, taking into consideration the height, width, and slope of the dune or dunes and the amount and type of vegetation thereon.\u201d The term \u201couter banks of this State\u201d is defined as \u201call of that part of North Carolina which is separated from the mainland by a body of water, such as an inlet or sound, and which is in part bounded by the Atlantic Ocean, and in New Hanover, Onslow and Brunswick Counties this shall include the land areas lying between the Inter-Coastal Waterway and the Atlantic Ocean.\u201d\nThis 1957 Act (S.L. 1957, c. 995), ratified June 4, 1957, and in force from and after July 1, 1957, is now codified as Chapter 104B, Article 3, G.S. Yol. 2C (Replacement 1958). Its purpose is set forth in the (quoted) preamble. Its provisions manifest a legislative determination that, unless a contrary factual determination is made in respect of specific areas as provided therein, it is necessary to prohibit the destruction or removal of trees, shrubbery, grass or other vegetation growing on the sand dunes along the Outer Banks in order to prevent further damage to this portion of the State\u2019s territory. Enforcement of its provisions is by criminal prosecution.\nThe said 1957 Act (S.L. 1957, c. 995) is not challenged by plaintiffs in this action. Defendants refer thereto only as declaratory of the State\u2019s public policy, namely, to take such action as may be appropriate and necessary to prevent further damage to the Outer Banks. Hereafter, we consider the two statutes directly challenged by plaintiffs and relied on by defendants.\nThe 1957 Act (S.L. 1957, c. 1057, now codified as G.S. Chapter 68, Article 4, 1959 Cumulative Supplement), challenged by plaintiffs, was ratified June 5, 1957, and is entitled \u201cAN ACT TO PROHIBIT STOCK AND CATTLE FROM RUNNING AT LARGE ALONG THE OUTER BANKS.\u201d Section 1 provides: \u201cFrom and after July 1, 1958, it shall be unlawful for any person, firm or corporation to allow his or its horses, cattle, goats, sheep, or hogs to run free or at large along the outer banks of this State. This Act shall not apply to horses known as marsh ponies or banks ponies on Ocracoke Island, Hyde County. This Act shall not apply to horses known as marsh ponies or banks ponies on Shackelford (sic) Banks between Beaufort Inlet and Barden\u2019s Inlet in Carteret County. Saving and excepting those animals known as 'banker ponies\u2019 on the Island of Ocracoke owned by the Boy Scouts and not exceeding 35 in number.\u201d Section 1% provides: \u201cNotwithstanding any other provisions of this Act, the Director of the Department of Conservation and Development shall have authority to remove or cause to be removed from Ocracoke Island and Shackelford (sic-) Banks all ponies known as banks ponies or marsh ponies if and when he determines that such action is essential to prevent damage to the island. In the event such a determination is made, the director, in lieu of removing all ponies, may require that they be restricted to a certain area or corralled so as to prevent damage to the island. In the event such action is taken, the director is authorized to take such steps and act through his duly designated employees or such other persons as, in his opinion, he deems necessary and he may accept any assistance provided by or through the National Park Service.\u201d Section 2 declares the violation of this statute a misdemeanor, punishable as provided therein. Section 3 declares the provisions of \u201cG.S. 68-24 to G.S. 68-30,\u201d relative to the impounding of stock running at large, shall apply with equal force and effect along the Outer Banks of this State. Section 4 defines the term \u201couter banks of this State\u201d as \u201call of that part of North Carolina which is separated from the mainland by a body of water, such as an inlet or sound, and which is in part bounded by the Atlantic Ocean.\u201d\nThe 1957 Act (S.L. 1957, c. 1057), challenged by plaintiffs, contains no provision for its enforcement in respect of cattle otherwise than by criminal prosecution. Nothing therein purports to authorize either the destruction or removal of cattle allowed to run free and at large in violation of its provisions.\nPlaintiffs attack the challenged 1957 Act on the ground the provisions thereof relating to \u201cmarsh ponies or banks ponies on Ocracoke Island, Hyde County,\u201d and to \u201cmarsh ponies or banks ponies on Shackelford (sic) Banks,\u201d constitute an unreasonable and arbitrary classification, citing S. v. Glidden Co., 228 N.C. 664, 46 S.E. 2d 860. There are no allegations or findings relevant to whether there is a reasonable factual basis for placing \u201cmarsh ponies or banks ponies\u201d in a classification different from cattle. Suffice to say, plaintiffs, if prosecuted for violation of the challenged 1957 Act, may, as in S. v. Glidden Co., supra, assert fully their contentions as to its unconstitutionality.\nOrdinarily, the constitutionality of a statute or municipal ordinance will not be determined in an action to enjoin its enforcement. Jarrell v. Snow, 225 N.C. 430, 35 S.E. 2d 273, and cases cited; Suddreth v. Charlotte, 223 N.C. 630, 27 S.E. 2d 650, and cases cited. The well established exception to this rule is stated by Higgins, J., as follows: \u201cAn Act will be declared unconstitutional and its enforcement will be enjoined when it clearly appears either that property or fundamental human rights are denied in violation of constitutional guarantees.\u201d Roller v. Allen, 245 N.C. 516, 518, 96 S.E. 2d 851, and cases cited. It is noteworthy that plaintiffs do not allege they own any land on Shackleford Banks. The gist of their allegations is that they own cattle which, without interference by the owners of the land, run at large on Shackleford Banks.\nAs to plaintiffs\u2019 attack on the challenged 1957 Act, we are of opinion that the general rule stated in the preceding paragraph applies to the present factual situation. It is noted that an action is maintainable under the Declaratory Judgment Act, G.S. 1-253 et seq., \u201conly in so far as\u201d it \u201caffects the civil \u2018rights, status and other relations\u2019 in the present actual controversy between parties.\u201d Calcutt v. McGeachy, 213 N.C. 1, 195 S.E. 49.\nThe 1959 Act (S.L. 1959, c. 782) challenged by plaintiffs is entitled \u201cAN ACT TO PROVIDE FOR THE REMOVAL OF CATTLE REMAINING ON CORE BANKS IN CARTERET COUNTY.\u201d Its provisions, quoted in full, are as follows:\n\u201cWHEREAS, under the provisions of Chapter 1057 of the Session Laws of 1957, it is unlawful to permit cattle, sheep, goats, or swine to run at large on the Outer Banks of this State from and after July 1, 1958; and\n\u201cWHEREAS, there are numbers of such livestock remaining on the Outer Banks in Carteret County; and\n\u201cWHEREAS, it is necessary to provide for the removal of such cattle: Now, therefore,\n\u201cThe General Assembly of North Carolina do enact:\n\u201cSection 1. All cattle, sheep, goats and swine remaining on the Outer Bank, between Beaufort Inlet and Ocracoke Inlet in Carteret County on or after July 1, 1959, shall become the property of Carteret County and the sheriff of said county is authorized and directed to remove said cattle, sheep, goats and swine from said Banks by whatever method he may deem necessary and turn the same over to such charitable or educational institutions in Carteret County as may be designated by the Board of County Commissioners of said county.\n\u201cSec. 2. All laws and clauses of laws in conflict with this Act are hereby repealed.\n\u201cSec. 3. This Act shall be in full force and effect from and after its ratification.\n\u201cIn the General Assembly read three times and ratified, this the 9th day of June, 1959.\u201d\nWhile the preamble refers to the challenged 1957 Act, the effective provisions of the 1959 Act are complete within themselves. They relate to a portion of the Outer Banks, namely, the segment thereof in Carteret County between Beaufort Inlet and Ocracoke Inlet. They relate to all cattle, etc., remaining on said segment on and after July 1, 1959. They make no distinction between cattle running at large and cattle that are confined and for which provision is made as to their food and shelter otherwise than by Mother Nature.\nNo provision of the 1959 Act purports to authorize the Sheriff of Carteret County, with or without purported authority from the Board of Commissioners of Carteret County, to destroy plaintiffs\u2019 cattle.\nThe 1959 Act purports, by legislative fiat, to divest plaintiffs\u2019 title to the cattle and to vest title in Carteret County, and to authorize the Sheriff of Carteret County to remove the cattle from Shackleford Banks \u201cby whatever method he may deem necessary and turn the same over to such charitable or educational institutions in Carteret County as may be designated by the Board of Commissioners of said county.\u201d In short, the 1959 Act confiscates plaintiffs\u2019 cattle and authorizes disposition thereof by gift to a charitable or educational institution in Carteret County.\nTrue, as stressed by plaintiffs, the 1959 Act makes no provision for the payment of compensation to plaintiffs. Where private property is appropriated for a public purpose or use in the exercise of the power of eminent domain, and the statute authorizing such appropriation provides no adequate remedy for compensation, the owner, in the exercise of his constitutional rights, may maintain an action to obtain just compensation therefor. Sale v. Highway Commission, 242 N.C. 612, 89 S.E. 2d 290; Eller v. Board of Education, 242 N.C. 584, 89 S.E. 2d 144. However, defendants are not asserting any rights, in the exercise of the power of eminent domain, to appropriate plaintiffs\u2019 cattle for a public purpose or use.\nDefendants contend that personal property, although harmless per se, may become a public nuisance when used in violation of the criminal laws of the State, and that in such case the General Assembly may provide for the forfeiture of personal property so used. Defendants rely largely on Daniels v. Homer, 139 N.C. 219, 51 S.E. 992; Lawton v. Steele, 152 U.S. 133, 38 L. Ed. 385, 14 S. Ct. 499; and similar cases.\nIt is noted that G.S. 18-6, relating to vehicles used in the unlawful transportation of intoxicating liquor, provides for the forfeiture (confiscation) and sale of such vehicles only upon conviction of the criminal offense. In this connection, see Skinner v. Thomas, 171 N.C. 98, 87 S.E. 976.\nNothing appears herein to indicate plaintiffs have been prosecuted and convicted of violating the challenged 1957 Act. Nor do plaintiffs admit they have violated any valid criminal statute. Compare Daniels v. Homer, supra. The 1959 Act provides no procedure for a judicial determination as to whether plaintiffs\u2019 cattle constitute a public nuisance in violation of the challenged 1957 Act or other penal statute. True, it was held in Daniels v. Homer, supra, where the use of fish nets in defined waters was banned from January 15th to May 15th, that the owner of the fish nets, upon the seizure thereof for alleged unlawful use, had an adequate remedy at law by claim and delivery or for recovery of the value thereof. (Note: In Daniels v. Homer, supra, two of the five members of the Court dissented. See dissenting opinions of Connor, J. and Walker, J.) The majority opinion emphasizes the fact that, if seizure were forbidden pending a judicial determination, either in a criminal prosecution or otherwise, as to whether such seizure was lawful, the \u201cclose\u201d season would pass and the objective of the statute would be nullified.\nThe 1959 Act goes far beyond the challenged 1957 Act. Moreover, the authority purportedly conferred thereby is not conditioned on the violation, much less the establishment of such violation after hearing, of the challenged 1957 Act.\nThere are many facets to the legal problems suggested in the preceding paragraphs. 12 Am. Jur., Constitutional Law \u00a7\u00a7 676-679; 16A C.J.S., Constitutional Law \u00a7 645. This statement appears in 23 Am. Jur., Forfeitures and Penalties \u00a7 5: \u201cStatutes imposing forfeitures by way of punishment are subject to the general rules governing the interpretation and construction of penal statutes. Hence, statutes authorizing the forfeiting of property ordinarily used for a legal purpose are to be strictly construed, since they are very drastic in their operation.\u201d See 37 C.J.S., Forfeitures \u00a7 5. In Daniels v. Homer, supra, Hoke, J. (later C.J.), in his concurring opinion, referring to legislation creating a criminal nuisance and directing its summary abatement, says: \u201cWhen such legislation, however, involves the destruction of private property, it must be limited to the reasonable necessities of the case which calls it forth, and may under given circumstances become the subject of judicial scrutiny and control.\u201d\nUpon the present record, we deem it inappropriate to pass upon whether, if the 1959 Act were considered applicable only to cattle allowed to run at large in violation of the challenged 1957 Act, the forfeiture and confiscation might be upheld upon legal principles underlying the decision in Daniels v. Homer, supra, and similar cases. Apart from the fact it is unnecessary to decision, the minimum factual findings and the less than exhaustive exploration of this subject in the briefs suggest it would be better to deal with this question upon another record.\nThe sole ground on which a forfeiture and confiscation of plaintiffs\u2019 cattle could be sustained is that they are running at large in violation of the challenged 1957 Act and therefore constitute a public nuisance. The challenged 1957 Act does not provide for such forfeiture and confiscation. As stated above, the 1959 Act relates solely to the segment of the Outer Banks in Carteret County between Beaufort Inlet and Ocracoke Inlet. It purports to authorize and direct the Sheriff of Carteret County, without judicial inquiry of any kind, to remove and dispose of all cattle, etc., in this particular area. In the light most favorable to defendants, it is a local act relating to the abatement of a public nuisance. If so, it is unconstitutional and therefore void as violative of Article II, Section 29, Constitution of North Carolina.\nThe conclusions reached are these: No opinion is expressed herein as to the constitutionality of the challenged 1957 Act. The 1959 Act, being unconstitutional and void, confers no authority on defendants to destroy or remove plaintiffs\u2019 cattle. Plaintiffs are entitled to a judgment enjoining defendants from such acts. For error in failing to enter such order and in entering judgment dismissing plaintiffs\u2019 action, the judgment is vacated and the cause is remanded for judgment in accordance with the law as stated herein.\nError and remanded.", "type": "majority", "author": "Bobbitt, J." } ], "attorneys": [ "Charles W. Stevens and Harvey Hamilton, Jr., for plaintiffs, appellants.", "Attorney General Bruton and Assistant Attorney General Rountree for the State.", "Hamilton, Hamilton & Phillips for defendant Salter and defendant Carteret County, appellees." ], "corrections": "", "head_matter": "RALPH D. CHADWICK and OLIVE WILLIS v. HUGH SALTER, SHERIFF OF CARTERET COUNTY, CARTERET COUNTY and THOMAS WADE BRUTON, ATTORNEY GENERAL OF NORTH CAROLINA.\n(Filed 12 April, 1961.)\n1. Appeal and Error \u00a7 1: Constitutional Law \u00a7 4: Injunctions \u00a7 5\u2014\nA party may enjoin -the enforcement of an unconstitutional statute when it clearly appears that either his fundamental property or personal rights are threatened, but a party may not attack the constitutionality of a statute by injunction when the action is not to protect any constitutional right directly and immediately threatened.\n2. Same\u2014\nThis action was instituted to enjoin a sheriff from removing plaintiffs\u2019 cattle from Shackleford Banks. Held: Plaintiffs are not entitled to challenege the constitutionality of Chapter 1057, S.L. 1957, since the 1957 Act does not purport to authorize the destruction or removal of cattle from any portion of the Outer Banks but provides for enforcement of its provisions solely by criminal prosecution, and plaintiffs would be entitled to attack the constitutionality of that statute only as a defense to a criminal prosecution thereunder.\n3. Declaratory Judgment \u00a7 1\u2014\nAn action may not be maintained under the Declaratory Judgment Act to determine rights, status or other relations unless the action involves a present actual controversy between the parties, G.S. 1-253.\n4. Statutes \u00a7 2: Nuisance \u00a7 10: Penalties\u2014\nThe provisions of Chapter 782, S.L. 1959, confiscating cattle and other designated animals remaining upon the designated area of the Outer Banks after July 1, 1959, may not be upheld as providing for a penalty or forfeiture since the seizure of animal\u00ae designated in the statute is not predicated upon conviction or prosecution for violation of any law, and if the statute provides for confiscation to abate a public nuisance, it relates solely to a designated segment of the Outer Banks and is therefore void as a local act relating to the abatement of a public nuisance.\nAppeal by plaintiffs from judgment of Bundy, Resident Judge, entered in Chambers December 13, 1960. From CaRteRet.\nPlaintiffs allege they own certain cattle on Shackleford Banks; that defendant Salter, as Sheriff, pursuant to an order of the Board of Commissioners of Carteret County, is threatening to destroy or to remove plaintiffs\u2019 said cattle; that defendant Salter and Carteret County assert their threatened action is authorized by Chapter 1057, Session Laws of 1957, and Chapter 782, Session Laws of 1959; that said 1957 and 1959 statutes are unconstitutional; and that said defendants should be enjoined.\nPlaintiffs, asserting their action is brought under the Declaratory Judgment Act, G.S. 1-253 et. seg., \u201cand for affirmative relief,\u201d served the Attorney General with a copy of the proceeding. G.S. 1-260.\nDefendants Salter and Carteret County, hereinafter referred to as \u201cdefendants,\u201d filed a joint answer. Plaintiffs filed a reply to the further answer set forth therein. A separate answer was filed by the Attorney General.\nThe hearing was on the verified pleadings. The judgment recites that it was \u201cagreed by counsel for all parties that no issues of fact were raised and that this hearing should be a final hearing . . .\u201d The judgment recites further that the court gave careful and deliberate consideration to whether said 1957 and 1959 statutes \u201care valid and in the exercise of the police powers of the State, or whether they are void as contravening the due process (clauses) of the Constitutions of the State and Federal Governments.\u201d The judgment concludes as follows:\n\u201cThe Court finds as relating to the cattle in question that the facts are substantially as set forth in the complaint of the plaintiffs, and that the allegations respecting jurisdiction are as therein laid.\n\u201cThe Court also takes note of the fact that there is neither allegation nor proof of the insolvency of the defendants or any showing that the plaintiffs would not have adequate remedy at law should they suffer the loss of their cattle by unlawful or wrongful means. The Court also takes the position, and so holds as a matter of law, that the referred-to statutes attacked by this proceeding are not in contravention of the Constitution of either the State or Federal Government, but are valid as in the exercise of the recognized police powers of the State of North Carolina.\n\u201cIt is hereupon ORDERED that the Temporary Restraining Order heretofore issued in this cause be, and the same is hereby, dismissed, with costs taxed against the plaintiffs.\u201d\nPlaintiffs excepted to said judgment and appealed.\nCharles W. Stevens and Harvey Hamilton, Jr., for plaintiffs, appellants.\nAttorney General Bruton and Assistant Attorney General Rountree for the State.\nHamilton, Hamilton & Phillips for defendant Salter and defendant Carteret County, appellees." }, "file_name": "0389-01", "first_page_order": 427, "last_page_order": 436 }