
    DIXIE POSTER ADVERTISING CO., Inc., v. CITY OF ASHEVILLE et al.
    (Filed 3 June, 1925.)
    1. Taxation — Confiscation—Injunction—Burden of Proof.
    While ordinarily a restraining order for the collection of an unlawful tax will not be granted, it is an exception which the plaintiff must show, when the imposition of this tax will cause the irreparable loss of property rights, or amount to an unlawful confiscation of his property.
    2. Same — Appeal and Error — bindings of Pact — Review.
    Whether the license tax imposed in this case by city ordinance will amount to a confiscation of plaintiff’s property or cause him to operate his business at a loss, being a matter of calculation, the Supreme Court remands the case for the ascertainment of the expenditures, so as to show in comparison with the profits stated the status of plaintiff’s business as affected by the tax imposed by the ordinance.
    Clarkson and Varser, JJ., concur in result only.'
    Appeal by defendants from an order of Stacie, J., made at Chambers in Asheville, 18 April, 1925, continuing a restraining order to the final hearing.
    
      Marcus Erwin and Garter, Shuford, Hartshorn & Hughes for plaintiff.
    
    
      Jones, Williams <& Jones for defendants.
    
   Adams, J.

The object of this action is to restrain the collection of a tax levied by the city of Asheville for the privilege of advertising by tbe use of billboards. At tbe bearing tbe judge found certain facts, among wbicb are these: (1) Tbe plaintiff in tbe exercise of its corporate powers conducts a business known as “Outdoor Advertising,” and for this purpose maintains a large number of billboards and poster-boards situated on private property; (2) when tbe suit was instituted tbe plaintiff owned, leased and used about 150 boards, erected at a cost of more tban $10,000, tbe total posting surface of wbicb was more tban 3,825 lineal feet; (3) tbe plaintiff has made numerous contracts with .its customers for tbe display of advertising matter upon these boards and derives its sole income from payments made by its customers; (4) tbe gross income received by tbe plaintiff from its business in tbe city of Asheville for tbe fiscal year 1923-24 was approximately $12,000 and tbe net income $873.07; (5) under an ordinance of tbe city, tbe defendants are attempting to impose and collect an annual license tax of one dollar on each lineal foot of tbe plaintiff’s total lineal footage in tbe city, wbicb is 3,825 feet, tbe tax amounting to $3,825; (6) for several years prior to tbe passage of this ordinance tbe city levied and imposed on tbe plaintiff a license tax of $300, wbicb tbe plaintiff has tendered to tbe defendant in payment of tbe tax for tbe current year.

Upon tbe facts found and set out in tbe judgment, tbe order restraining tbe collection of any tax in excess of tbe $300 tendered by tbe plaintiff was continued to tbe final bearing.

Tbe plaintiff contends that tbe defendants, while purporting to exercise tbe power of taxation for municipal purposes, have levied and are attempting to collect from tbe plaintiff a license and privilege tax which is oppressive, prohibitive, confiscatory, and, therefore, invalid, while tbe defendants contend that injunction is not available to restrain tbe enforcement of an invalid municipal ordinance, and, moreover, if it is, that tbe evidence is not sufficient to warrant such remedy.

In a number of our decisions it has been held that, as a general rule, an injunction will not be granted to prevent tbe enforcement of an invalid or unlawful municipal ordinance. Cohen v. Comrs., 77 N. C., 2; Wardens v. Washington, 109 N. C., 21; Scott v. Smith, 121 N. C., 94; Paul v. Washington, 134 N. C., 363; Hargett v. Bell, ibid., 394; S. v. R. R., 145 N. C., 495, 521; Thompson v. Lumberton, 182 N. C., 260; Turner v. New Bern, 187 N. C., 541. But this general rule is not universal in its application; on tbe contrary, it is subject to recognized exceptions. If it appear that an ordinance is unlawful or in conflict with tbe organic law and that an injunction against its enforcement is necessary for tbe protection of property rights or tbe rights of persons, otherwise irremediable, tbe writ is available in tbe exercise of tbe equitable powers of tbe court. See tbe concurring opinion of Mr. Justice Hoke in Turner v. New Bern, supra, and tbe concurring opinion of Mr. Justice Brown in R. R. v. Goldsboro, 155 N. C., 365. Tbe principle is clearly and forcefully enunciated in recent opinions of tbe Supreme Court of the United States. In Hygrade Provision Co. v. Sherman, Advance Opinions, Nos. 6, 7, p. 169 (decided 5 January, 1925), Mr. Justice Sutherland said: “Tbe general rule is tbat equity will not interfere to prevent tbe enforcement of a criminal statute, even tbougb unconstitutional. . . . But appellants seek to bring themselves witbin an exception to tbis general rule — namely, tbat a court of equity will interfere to prevent criminal prosecutions under an unconstitutional statute wben tbat is necessary to effectually protect property rights.” And in Terrace v. Thompson, 263 U. S., 197, 214, 68 Law. Ed., 255, 274, Mr. Justice Butler used tbis language: “Tbe uneonstitutionality of a State law is not of itself ground for equitable relief in tbe courts of tbe United States. Tbat a suit in equity does not lie where there is a plain, adequate, and complete remedy at law is so well understood as not to require tbe citation of authorities. But tbe legal remedy must be as complete, practical, and efficient as tbat which equity could afford. Boise Artesian Hot & Cold Water Co. v. Boise City, 213 U. S., 276, 281, 53 Law Ed., 796, 798, 29 Sup. Ct. Rep., 426; Walla Walla v. Walla Walla Water Co., 172 U. S., 1, 11, 12, 43 Law. Ed., 341, 346, 347, 19 Sup. Ct. Rep., 77. Equity jurisdiction will be exercised to enjoin tbe threatened enforcement of a State law which contravenes tbe Eederal Constitution wherever it is essential, in order effectually to protect property rights and tbe rights of persons against injuries otherwise irremediable; and in such a case a person who, as an officer of tbe State, is clothed with tbe duty of enforcing its law, and who threatens and is about to commence proceedings, either civil or criminal, to enforce such a law against parties affected, may be enjoined from such action by a Eederal court of equity.” See, also, Packard v. Banton, 264 U. S., 140, 143, 68 Law Ed., 596, 607.

In tbe instant case it is incumbent upon tbe plaintiff, who seeks relief by injunction, to bring itself witbin tbe exception to tbe general rule. Whether it has done so does not definitely or sufficiently appear. Tbe trial judge, it is true, finds tbe plaintiff’s gross income for tbe fiscal year to be approximately $12,000 and its net income $873.07; but in a suit of tbis character the' appellate court may examine tbe evidence and reach its own conclusion as to tbe facts. Sanders v. Ins. Co., 183 N. C., 66, 68; Woolen Mills v. Land Co., ibid., 511, 513. Tbe amount of tbe income, gross or net, is a mathematical deduction. Tbe gross income is set out in solido, but there is no statement of facts in the record and no sufficient evidence to explain tbe great disparity between tbe gross and tbe net income. In considering tbe question whether tbe tax is confiscatory or prohibitive, tbis Court may determine for itself whether tbis disparity, stated as a conclusion, is justified by the facts. In other words, there should be evidence to show for what purpose the expenditures were made which, it is claimed, reduce the gross income to a net income of $873.07; for it is the province'of the law, not of the plaintiff, to determine to what extent the gross income is legitimately to be diminished by the expenditures. Further information is necessary to. an adequate consideration of the alleged prohibitive feature of the ordinance. The cause is, therefore, reversed and remanded for additional facts, to the end that the court may adjudge whether the plaintiff has brought itself within the exception.

Reversed and remanded.

ClaRKSON and VaeseR, J. J., concurring in result on,ly.  