No. 382.

71 S.E.2d 21 (1952)

235 N.C. 737


Supreme Court of North Carolina.

June 11, 1952.

Attorney(s) appearing for the Case

Jones, Reed & Griffin, and John G. Dawson, Kinston, for plaintiff appellees.

Fuller, Reade, Umstead & Fuller, Durham, F. L. Fuller, Jr., Durham, of counsel, for defendant appellant Liggett & Myers Tobacco Co.

Victor S. Bryant, Durham, Robert I. Lipton, Ralph N. Strayhorn, and Victor S. Bryant, Jr., Durham, of counsel, for defendant appellant American Suppliers, Inc.

Lucas & Rand, and Z. Hardy Rose, Wilson, for defendant appellant Imperial Tobacco Co. (of Great Britain & Ireland) Limited.

Albion Dunn, Greenville, for defendant appellants Export Leaf Tobacco Co. and Kinston Tobacco Co., Inc.

Harrison M. Robertson, Raleigh, of counsel, for defendant appellant Export Leaf Tobacco Co.

James Mullen, Gastonia, of counsel, for defendant appellant Kinston Tobacco Co., Inc.


The primary relief sought in this action is a mandatory injunction requiring the defendants to comply with the rules promulgated by the corporate plaintiff and its resolution of 24 September 1951. This raises two questions: (1) Does a mandatory injunction lie, under the facts in this case? (2) Is the Kinston Tobacco Board of Trade, Inc., authorized by law to establish a fifth sale on the Kinston market and require that each of the defendants assign buyers, with instructions to bid and purchase, on the fifth sale substantially the same quantity of tobacco at substantially the same price as each had theretofore purchased upon each of the four sales theretofore conducted upon said market?

A mandatory injunction has a proper and necessary place in the administration of justice when the necessity is urgent and the right is clear, but an examination of the available authorities fails to disclose any case wherein such a process has been used to establish an entirely new status. Such a remedy is available and useful to restore a status quo, but nowhere employed to force an individual or private corporation to do something entirely beyond the scope of his business judgment and beyond the range of his own volition. ClintonDunn Telephone Co. v. Carolina Telephone Co., 159 N.C. 9, 74 S.E. 636; Leaksville Woolen Mills v. Spray Water Power & Land Co., 183 N.C. 511, 112 S.E. 24; Keys v. Alligood, 178 N.C. 16, 100 S.E. 113.

Furthermore, it is never available as a temporary writ pending the final determination of the facts raised by the pleadings. Board of Managers of James Walker Memorial Hospital v. City of Wilmington, 235 N.C. 597, 70 S.E.2d 833.

In the case at bar, the defendants have participated in a satisfactory manner over a long period of time in the four-sale market, but for reasons satisfactory to themselves have declined to participate in the fifth sale. If the corporate plaintiff can by the process here employed require the defendants against their judgment to place buyers upon the fifth sale and thereby be forced to purchase a fifth more tobacco than they are now purchasing, then there is no reason why the same procedure could not be extended indefinitely and over the entire Bright Leaf Belt. This is revolutionary in principle and strikes at the heart of our system of free enterprise.

We therefore reach the conclusion that a mandatory injunction can not properly be used upon the facts presented by this record.

The business of operating auction warehouses for the public sale of leaf tobacco is undoubtedly affected with a public interest and subject to reasonable public regulations, Gray v. Central Warehouse Co., 181 N.C. 166, 106 S.E. 657; Bright Belt Warehouse Ass'n v. Tobacco Planters Warehouse, 231 N.C. 142, 56 S.E.2d 391; but this fact alone does not clothe the Kinston Tobacco Board of Trade, Inc., with the power to establish a five-sale market and invade private rights to the extent of requiring individuals or private corporations to participate on the fifth sale. The corporate plaintiff has no authority to legislate. It can not create a duty where the law creates none. The Legislature has the authority to regulate, within constitutional limits, the sale of leaf tobacco upon the auction markets of this State, and in doing so may prescribe standards of conduct to be observed by those who conduct auction warehouses as well as others participating in the sales. But this is a nondelegable power. Motsinger v. Perryman, 218 N.C. 15, 9 S.E.2d 511, and cases cited; State v. Harris, 216 N.C. 746, 6 S.E.2d 854, 128 A.L.R. 658. The power to regulate may be delegated to an administrative agency only to the extent of "filling in the details" within the general scope and expressed purpose of the statute prescribing the standards. Motsinger v. Perryman, supra.

The statute under which the corporate plaintiff is organized is silent upon the question of the number of sales and prescribes no standard by which the number of sales may be determined. Therefore, in the absence of an agreement, either expressed or implied, the plaintiff has no right to establish a fifth sale and require the defendants to purchase thereon. Hamlet Hospital & Training School for Nurses v. Joint Committee, 234 N.C. 673, 68 S.E.2d 862, concurring opinion by Barnhill, J. Its authority is limited to the regulation of hours of sale, size of piles, and like details. Neither the statute, G.S. § 106-465, nor its charter vests it with the authority it here seeks to exercise. In no event was the bylaw adopted by it relating to a fifth sale binding on defendants by virtue of their nonparticipating membership in the corporation or otherwise.

The large number of tobacco producers who were made parties plaintiff by order of the court are not members of the corporate plaintiff and certainly have no greater right to control the internal and private affairs of an individual or private corporation than the corporate plaintiff, and their presence in this litigation is therefore without effect upon the final determination of the questions here presented.

It follows, therefore, that the mandatory injunction was improvidently entered and that the demurrers ore tenus should have been sustained.



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