Summary
declining to reach "grave questions of constitutional law" because "the cause of action has been destroyed" and "this Court will not go into a consideration of the abstract question"
Summary of this case from State v. DawOpinion
(February Term, 1897.)
Action for Mandamus — Repeal of Statute Pending Appeal — Abatement — Right to Costs — Practice — Judicial Notice of Statute.
1. Where, pending an appeal from a judgment for plaintiff in an action for mandamus to compel the defendants, board of county commissioners, to build a bridge, the statute requiring the bridge to be built was repealed: Held, that such repeal abated the action.
2. Where, pending an appeal, the subject matter of the action is destroyed or a statute giving the cause of action is repealed, this Court will not go into consideration of the abstract question as to which party ought to have prevailed, in order to adjudicate the costs, but the judgment below as to costs will be allowed to stand.
3. The courts will take judicial notice of a public statute.
MANDAMUS to compel the defendants, the Board of Commissioners of JACKSON, to build a bridge, heard before Timberlake, J., at Spring Term, 1896, of JACKSON Superior Court. A peremptory mandamus was granted and defendants appealed.
Messrs. Moore Moore for defendants (appellants).
No counsel contra.
This was an application for a mandamus against the County Commissioners of Jackson County to compel them to build a certain bridge over the Tuckaseegee river and to levy a tax for that purpose, as required by chap. 12, Laws 1895. The defendants filed a demurrer denying the power of the Legislature to enact such statute. The demurrer was overruled, and the defendants, not availing themselves of the leave granted them to answer over, judgment for a peremptory mandamus and for costs was given against them, from which they (452) appealed. Pending the appeal to this court, the Legislature, by an act ratified 6 March, 1897, repealed the aforesaid chap. 12, Laws 1895. This destroyed the cause of action and there only remains the judgment against the defendant for costs.
It has been repeatedly held that where, pending an appeal, the subject-matter of an action, or the cause of action, is destroyed, in any manner whatever, this Court will not go into a consideration of the abstract question which party should rightly have won, merely in order to adjudicate the costs, but the judgment below as to the costs will stand. S. v. Horne, 119 N.C. 853; Blount v. Simmons, 119 N.C. 50. Here the demurrer raises grave questions of constitutional law, and the court will not consider and determine them after the cause of action has been destroyed. The court takes judicial notice without formal supplemental plea, of the repealing statute, which is a public act. By the judgment below, the plaintiff, who sued as a taxpayer, acquired no personal rights except as to the judgment for costs, and of that he could not be deprived by the repealing statute. The Code, sec. 3764. The judgment for costs below is affirmed, and each party will pay his own costs in this court, as the repealing statute was enacted before judgment here. Action abates.
Cited: Wilmington v. Cronly, 122 N.C. 391; Herring v. Pugh, 125 N.C. 438; Reid v. R. R., 162 N.C. 359.