Allison v. Sharp | Cases | Westlaw

We think the act of the General Assembly is constitutional. If a registrar in bad faith or in abuse of power or discretion should refuse to register one duly qualified, that is, when they come within this constitutional requirement and other provisions of the Constitution as to age, residence, sanity, citizenship, etc., then there is a remedy provided by law. The act of the General Assembly is no class legislation, but applicable to all the citizens of the state. In fact, in the final analysis, plaintiffs do not challenge the constitutionality of article 6, § 4, but only the statute passed to carry into effect the provisions of that section of the Constitution. It seems that, so far as plaintiffs are concerned, the action is moot or academic. The plaintiffs seek no affirmative relief whatsoever in the action, allege no bad faith or abuse of power or discretion on the part of the defendant Sharp, the registrar, but just do not like the law of their state. The only relief prayed for in their complaint is that section 5939, supra, be declared unconstitutional.

The Uniform Declaratory Judgment Act “does not extend to the submission of a theoretical problem or a ‘mere abstraction,”’ and “it is no part of the function of the courts, in the exercise of the judicial power vested in them by the Constitution, to give advisory opinions, or to answer moot questions, or to maintain a legal bureau for those who may chance to be interested, *30 for the time being, in the pursuit of some academic matter.” Stacy, C. J., in Poore v. Poore, 201 N.C. 791, 792, 161 S.E. 532, 533. To the same effect see Carolina Power & Light Co. v. Iseley, 203 N.C. 811, 167 S.E. 56. Nor is an ex parte proceeding brought to determine the petitioner's racial status within the scope or purview of the act. Ex parte Eubanks, 202 N.C. 357, 162 S.E. 769.

However, in the instant case, the plaintiffs and all the people of the state are vitally affected by the statute in controversy. While there was another remedy at law available to them, they have challenged the constitutionality of the statute under which they contend that the registrar refused them registration. Under such circumstances and conditions, the Uniform Declaratory Judgment Act affords a ready means of testing its validity, as pointed out in Borchard's Declaratory Judgments, p. 549, as follows: “In countries and especially in federal states, where the constitutionality or validity of statutes and ordinances can be judicially challenged, and where the declaratory judgment is known, it is a regular practice to use this simple device to attack the constitutionality or validity, or the construction or interpretation, of a statute or municipal ordinance. Section 2 of the Uniform Declaratory Judgment Act specifically authorizes any person affected by ‘a statute, municipal ordinance, contract, or franchise’ to have determined ‘any question of construction or validity’ thereunder, and section 11 provides that ‘In any proceeding which involves the validity of a municipal ordinance or franchise, such municipality shall be made a party, and shall be entitled to be heard, and if the statute, ordinance, or franchise is alleged to be unconstitutional, the Attorney-General of the State shall also be served with a copy of the proceeding and be entitled to be heard.”’