127 N.C. 243 | N.C. | 1900
Lead Opinion
Tbis is an action brought for tbe recovery of tbe office of member of tbe Board of Education, of Hert-ford County. Tbe plaintiff recovered judgment at April Term, 1900, and tbe defendant appealed. Tb© term of office expired by original limitation on tbe 1st day of July following after tbe rendition of tbe judgment, and pending tbe appeal. Tbis destroys tbe subject-matter of tbe action, rendering futile any further judgment for tbe plaintiff; and tbis Court has repeatedly declared that it will not undertake to determine tbe merits of a case simply for tbe purpose of deciding who shall pay tbe admitted costs. Herring v. Pugh, 125 N. C., 437, and cases therein cited. Therefore, in accordance with tbe uniform rulings of tbis Court, long followed, with a single exception, tbe appeal must be dismissed. Tbis -would seem to end tbe ease, but, as it is strenuously urged that we should dismiss tbe action itself, we are forced into a further discussion. Tbe only difference in result would be to tax tbe plaintiff with tbe entire costs both here and in tbe court below. We do not feel called on to further extend tbe rule for tbe simple purpose of taxing tbe plaintiff with tbe costs of an action in which be has recovered judgment, and in which at tbe time of tbe recovery of such judgment be was clearly entitled to tbe relief wbicb he sought. It is true that tbis Court, in Colvard v. Commissioners, 95 N. C., 515, dismissed tbe action—a proceed
Appeal dismissed.
Dissenting Opinion
(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 Avho 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
The doctrine of Hoke v. Henderson has been greatly expanded by this Court since January, 1899, but never till now was it held to apply to a matter of costs, nor has it been deemed so sacred that other and well-considered decisions shall be overruled, should it be deemed that even indirectly they impinge upon the new breadth given that case. In its original restricted limits, that case was based upon a construction of the clause of the Federal Constitution which forbids the impairment of the obligation of a contract. The construction placed by the United States Supreme Court upon the United States Constitution is binding upon all, and that high tribunal, in the very recent case of Taylor v. Beckham, 178 U. S., at pages 576, 577, cite the uniform rulings of that Court, notably, Butler v. Pennsylvania, 10 How., 402, 416, and Crenshaw v. U. S., 134 U. S., 99, “in which latter case,” the Court says, “Mr. Justice Lamar, stated the primary question in the case to be ‘whether an officer appointed for a definite time or during good behavior, had any vested interest or contract right in his office, of which Congress could not deprive him;’ and he said, speaking for the Court, ‘the question is not novel. There seems to be but little difficulty in deciding that there was no such interest or right.’ Butler v. Pennsylvania, supra; Newton v. Commissioners, 100 U. S., 548; Blake v. U. S., 103 U. S., 227, and many other cases. The decisions are numerous to the effect that public offices are mere agencies or trusts, and not property, as such. Nor are the salary and emoluments property, secured by contract, but compensation for services actually rendered. Nor does the fact that a constitution may forbid the Legislature from abolishing a public office or diminishing the salary thereof during the term of the
Dissenting Opinion
dissents from the opinion of the Court, lie regards the point involved in this case as having been settled adversely to such a claim as the plaintiff’s in the cases of Colvard v. Commissioners, 95 N. C., 515; Herring v. Pugh, 125 N. C., 437, and Commissioners v. Gill, 126 N. C., 86.