Reid v. Norfolk Southern Railroad
78 S.E. 306
N.C.
1913
Check Treatment
Hoke, L,

after stating the case: It is well understood that our courts have not the power nor will they undertakе to administer or control the internal affairs of a foreign corporation (Brenizer v. Royal Arcanum, 141 N. C., 409); and this being true, thе only facts presented in this complaint which tend to establish a cause cognizable herе are those which injuriously affect or threaten the chartered rights and privileges or holdings of thеse North Carolina companies. As a basis for/ such jurisdiction, it is alleged that the proposed merger, and incurring -the indebtedness in aid thereof, are contrary to our public policy and the express provisions of our State law. If this be conceded on the facts as set forth in the ‍​‌‌‌‌​​​‌​​​‌​‌‌‌‌​‌‌‌​​​‌​‌‌​‌​​‌‌‌​​​​‌‌​​​​​​‍complaint, the objection, in our opinion, has been entirely removed by the statute which has bеen formally called to our attention. This public piolicy, which, has been-not inaptly termed the “manifested will of the State,” is very largely a matter of legislative control, and it is a well recognized principle that in so far as the public is concerned and when not interfering with vested rights, a Legislature may ratify and make valid measures which it might have originally authorized. Barrett v. Barrett, 120 N. C., 127; Anderson v. Township of Santa Anna, 116 N. C., 356; Schenck v. City of Jeffersonville, 152 Ind., pp. 214-217; State of Illinois v. Ill. Central R. R., 33 Fed., pp. 730-771.

The plaintiff, not challеnging the enactment of the statute, contends that the defendant’s motion should be denied: Chiefly, (1) because the court will not take judicial notice of a private act.

*359 (2) Because the stаtute is in violation of Article I, sec, 17, of our Constitution, wbicb provides: “That no man or set ‍​‌‌‌‌​​​‌​​​‌​‌‌‌‌​‌‌‌​​​‌​‌‌​‌​​‌‌‌​​​​‌‌​​​​​​‍of men arе entitled to exclusive emoluments or privileges from the community but on consideration of publiс services.”

It is true, as a general rule, that a court does not take judicial notice of а private statute or its terms. This is a rule of pleading designed and intended primarily to prevent a litigant from being taken by surprise, and has been directly recognized both in our decisions and statutes (Corporation Commission v, R. R., 127 N. C., 283; Revisаl, sec. 500), but the principle was never intended, nor should it be allowed to prevail when a statutе which effectually settles all matters in controversy of which the .court has jurisdiction has after duе notice been formally brought to the attention of the court, and no issue made or suggested ‍​‌‌‌‌​​​‌​​​‌​‌‌‌‌​‌‌‌​​​‌​‌‌​‌​​‌‌‌​​​​‌‌​​​​​​‍as to its existence or its terms. It has been repeatedly held here that the court will not entertain' or proceed with a cause merely to determine abstract propositions and when the questions in controversy are no longer at issue, and this is a case coming clearly within the рrinciple. Wallace v. Wilkesboro, 151 N. C., 614; Wikel v. Commissioners, 120 N. C., 451. In this last ease judgment for a peremptory mandamus had been entered against commissioners, requiring that body to build a bridge over the Tuckaseigee River and to levy a tax therefоr pursuant to a certain statute. Pending an appeal, the Legislature repealed thе act: Held, that the repeal abated the action, and the present Chief Justice, delivering the opinion and in reference to this repeal, said: “This destroyed the cause of action, and there only remains the judgment against the defendant for costs. It has been rеpeatedly held that when 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 have rightly won, merely in order to adjudicate the сosts, but the judgment below as to the costs will stand.”

Nor will the second objection avail plaintiff, that thе act violates the section of the Constitution which prohibits the granting of special privilegеs and emoluments. The very section relied on by the appellant closes with the exception, “but *360 in consideration of public services,” and under our decisions these franchises granted to ‍​‌‌‌‌​​​‌​​​‌​‌‌‌‌​‌‌‌​​​‌​‌‌​‌​​‌‌‌​​​​‌‌​​​​​​‍public-service corporations come directly within the words and meaning of the exception. In re Spease Ferry, 138 N. C., pp. 219-222. Our Constitution, Art. VIII, sec. 1, also contains provision as follows: “Corporations may be formed under general laws,'but shall not be created by special act, except for muniсipal purposes, and in cases where, in the judgment of the Legislature,, the object of the сorporations cannot be attained under general laws. All general laws and special acts passed pursuant to this section may be altered from time to time, or repealed.” The grantees of these gwasi-public charters and their stockholders take and hold them subject to both of these constitutional provisions as construed and interpreted, and the act ratifying this consolidation and merger is no more the conferring of special privileges nor the violation of vested rights than the statutes by which they were originally created.

On the facts as they now appear of record, we are of opinion that the action should.be dismissed, and it is so ordered.

Action dismissed.

Ordered that the costs of this Court be equally taxed against plaintiff and defendant.