Wikel v. Board of Commissioners, 120 N.C. 451 (1897)

Feb. 1897 · Supreme Court of North Carolina

120 N.C. 451

WILLIAM WIKEL v. THE BOARD OF COMMISSIONERS OF JACKSON COUNTY.

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 Commissioners, to build a bridge, the statute requiring the bridge to be built was repealed ; Held, that such repeal abated the action.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 Where, pending an appeal, the subject matter of the action is destroyed or a Statute giving the cause of action is repealed, this court, will not go into a consideration of the abstract question as to which party ought to have prevailed, in order to adjudicate the costs but the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.

Civil acttoN, for a mandamus to compel the defendants, the Board of Commissioners of JaoKSON county, to build a bridge, heard before Timberlake, J., at Spring Term, 1896, of JaoKSON Superior Court. A peremptory mandamus was granted and defendants appealed.

Messrs. Moore da Moore, for defendants (appellants).

No counsel, contra.

ClaeK, J.:

This was an application for a m andamm against the County Commissioners of Jackson county to compel them to build a certain bridge over the Tuckaseegee river and levy a tax for that purpose, as required by Chapter 12,- Acts 1895. The defendants filed a demurrer denying the power of the Legislature to enact such Statute. The demurrer was overruled, and the defendants, uot 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 appealed. Bending the appeal to this court, tbe Legislature, by an Act ratified 6th March, 1897, repealed the aforesaid Chapter 12, Acts of 1895.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 canse 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. State 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, Section 3764. The judgment for costs below is affirmed, and each party will pay his own costs in this court, as thetrepealing Statute was enacted before judgment here. Action abates.