CLARK and MONTGOMERY, JJ., dissenting. (244)
This is an action brought for the recovery of the office of member of the Board of Education of HERTFORD. The plaintiff recovered judgment at April Term, 1900, and the defendant appealed. The term of office expired by original limitation on 1 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, 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 (245) 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, 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 can not adjudge any part of the costs against the appellee. Code, secs. 525, 527, 540. * * * He has an unreserved 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, can not 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 decision of this Court cited in Greene v. Owen, 125 N.C. 212, and in the concurring opinion of DOUGLAS, J., in Wilson v. Jordan, 124 N.C. 707. 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. Governor 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 (246) 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, divest 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, and Ward v. Elizabeth City, 121 N.C. 3. 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 inTaylor v. Beckham, 178 U.S. 548, 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 (247) Carolina. On the contrary, In Re Hennen, 13 Pet., 230, 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.: "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.