Taylor v. Vann

• Decision Date: 27 November 1900
• Citation: 37 S.E. 263,127 N.C. 243
• Parties: STATE ex rel. TAYLOR v. VANN.
• Court: North Carolina Supreme Court

37 S.E. 263

127 N.C. 243

STATE ex rel. TAYLOR v. VANN.

Supreme Court of North Carolina

November 27, 1900

Appeal from superior court, Hertford county; Coble, Judge.

Proceedings by the state, on the relation of J. C. Taylor, against John E. Vann. From a judgment in plaintiff's favor, defendant appeals. Dismissed.

Clark and Montgomery, JJ., dissenting.

Where pending appeal from a judgment in favor of plaintiff in an action to recover an office, the term of office expired rendering futile any further judgment, the court will dismiss the appeal, but will not dismiss the action, and thereby throw the costs on plaintiff, since the court cannot adjudge costs against appellee unless it reverses the judgment on the merits.

Winborne & Lawrence, for appellant.

George Cowper, for appellee.

DOUGLAS J.

This is an action brought for the recovery of the office of member of the board of education of Hertford county. The plaintiff recovered judgment at April term, 1900, and the defendant appealed. The term of office expired by original limitation on the 1st day of July following after the rendition of the judgment and pending the appeal. This destroys the subject-matter of the action, rendering futile any further judgment for the plaintiff; and this court has repeatedly declared that it will not undertake to determine the merits of a case simply for the purpose of deciding who shall pay the admitted costs. Herring v. Pugh, 125 N.C. 437 34 S.E. 538, and cases therein cited. Therefore, in accordance with the uniform rulings of this court, long followed, with a single exception, the appeal must be dismissed. This would seem to end the case, but, as it is strenuously urged that we should dismiss the action itself, we are forced into a further discussion. The only difference in result would be to tax the plaintiff with the entire costs both here and in the court below. We do not feel called on to further extend the rule for the simple purpose of taxing the plaintiff with the costs of an action in which he has recovered judgment, and in which at the time of the recovery of such judgment he was clearly entitled to the relief which he sought. It is true that this court, in Colvard v. Commissioners, 95 N.C. 515, dismissed the action,-a proceeding that appears never since to have been followed; but it is significant that in that case this court decided against the plaintiff on appeal before it dismissed the action. Of course, under such circumstances, there remained no ground on which the plaintiff could claim his costs; and the unusual proceeding of the court, while questionable in principle, involved no actual injustice. In Commissioners v. Gill, 126 N.C. 86, 35 S.E. 228, our latest case upon this subject, in which the appeal was dismissed, this court says: "It is urged that the costs ought to be divided, but the judgment below in favor of plaintiffs is presumed to be correct until reversed, and unless the court, upon the merits, reverses the judgment below, it cannot adjudge any part of the costs against the appellee. Code, §§ 525, 527, 540. *** He has an unreversed judgment of a court of competent jurisdiction." So has the plaintiff in the case at bar, and, if such a judgment was sufficient to protect the plaintiff from the imposition of any costs in the former case, why is it not equally efficacious in the present case? The principle is the same, and why are not both plaintiffs entitled to its equal application? That the plaintiff had a just and lawful cause of action, not only at the time his action was brought, but also at the time he recovered judgment, cannot be denied, if we adhere to the doctrine of Hoke v. Henderson, 15 N.C. 1, so recently, repeatedly, and unanimously reaffirmed by us. That this celebrated case was regarded as the settled law for more than half a century is shown by the decisions of this court cited in Greene v. Owen, 125 N.C. 212, 34 S.E. 424, and in the concurring opinion of Douglas, J., in Wilson v. Jordan, 124 N.C. 707, 33 S.E. 139. Contemporary expression will show that it equally received the commendation of the good and great, as being thoroughly consistent with the highest standard of public policy. Gov. Graham, in his address upon Chief Justice Ruffin, says: "Judge Ruffin's conversancy with public ethics, public law, and English and American history seems to have assigned to him the task of delivering the opinions on constitutional questions which have attracted most general attention. That delivered by him in the case of Hoke v. Henderson, in which it was held that the legislature could not, by a sentence of its own in the form of an enactment, devest a citizen of property, even in a public office, because the proceeding was an exercise of judicial power, received the highest encomium of Kent and other authors on constitutional law; and I happened personally to witness that it was the main authority relied on by Mr. Reverdy Johnson in the argument for the second time in Ex parte Garland, which involved the power of congress, by a test oath, to exclude lawyers from the practice in the supreme court of the United States, for having participated in civil war against the government, and in which the reasoning on the negative side of the question was sustained by that august tribunal." An opinion delivered by Ruffin, and receiving the highest encomium of Kent, Reverdy Johnson, and William A. Graham, is entitled to consideration, even without the unanimous indorsement it received from this court, as now constituted, in Wood v. Bellamy, 120 N.C. 216, 27 S.E. 113, and Ward v. City of Elizabeth City, 121 N.C. 3, 27 S.E. 993. If it was the law then, it is the law now, and the court that stayed the hand of the legislature of 1897 is of equal authority to-day. But we are told that in view of the recent decision of the supreme court of the United States in the case of Taylor v. Beckham, 178 U.S. 548, 20 S.Ct. 890, 44 L.Ed. 1187, arising under the constitution and laws of Kentucky, we should abandon our own convictions, and overrule the uniform decisions of this court for the past 70 years, in deference to the highest court of the republic. When did courtesy ever go so far? Moreover, the supreme court of the United States has never held or intimated that such was the law in North Carolina. On the contrary, in Re Hennen, 13 Pet. 230, 10 L.Ed. 138, it distinctly recognized Hoke v. Henderson as a valid construction of the constitution and law of this state. That court says on page 261, 13 Pet., and page 154, 10 L. Ed.: "The case of Hoke v. Henderson, 15 N.C. 1, decided in the supreme court of North Carolina, is not at all in conflict with the doctrine contained in the cases referred to. That case, like the others, turned upon the constitution and laws of North Carolina." It is true, that august tribunal, whose decisions we will always follow when authorities, and most carefully consider when only precedents, differs with us on that point, as a general principle of law, as it does on some other important principles; but that is not sufficient reason for us to disregard our own settled decisions and personal convictions. Appeal dismissed.

CLARK J. (dissenting).

The plaintiff recovered judgment for the office of member of the board of education of Hertford county at April term, 1900, of the superior court of that county. The term of that office expired on the 1st day of July, 1900, pending the appeal here. This court could now render no judgment that the plaintiff be admitted to the office, and it has repeatedly held that in such cases it will not go on to discuss a pure abstraction, and determine who would have won if the cause of action had not determined; that it will not decide the merits of an extinct controversy merely to award the costs. In Colvard v. Commissioners, 95 N.C. 515, Ashe, J says: "Suppose there was no error; how could judgment in this case avail the plaintiff? He seeks to be inducted into office by virtue of the writ of mandamus, but what office? Why, that of sheriff for the term ending on the 4th day of December, 1886. But that time has expired, and a new sheriff has been regularly elected for the term of two years from the 4th day of December, 1886. A judgment, then, in favor of the plaintiff cannot be followed by any practical results. If he ever had a right to the remedy he invokes, he has been so unfortunate as to lose it by the law's delay. We are of opinion, for this reason, that the action should be dismissed, and it is so ordered." The same ruling (that the court will not decide an appeal when the cause of action has become extinct, for any reason, during the appeal) has been held in a uniform line of authorities which are cited in Herring v. Pugh, 125 N.C. 437, 34 S.E. 538, and reiterated at last term in Commissioners v. Gill, 126 N.C. 86, 35 S.E. 228. In Commissioners v. Gill the county commissioners brought a summary proceeding against a tenant before a justice of the peace for possession of land. It was admitted that the land belonged to the county, but the novel defense was set up that defendant was entitled to possession by virtue of an office of which he had been dispossessed. The judge below not sustaining this effort to try title to office as a counterclaim in an action before a justice of the peace, the county recovered judgment. Pending the appeal the attempted defense ceased by expiration of the term of office, and nothing could be done except to dismiss the appeal, there being nothing left to be decided. In this case it is the plaintiff's cause of action which has expired pending appeal, and hence the action must be dismissed, unless we reverse all the precedents, and try the merits of a dead cause, and determine who would have won if the cause of action had not died, merely...