Coffey v. Rader, 182 N.C. 689 (1921)

Dec. 21, 1921 · Supreme Court of North Carolina

182 N.C. 689

F. H. COFFEY et al. v. C. M. RADER et al.

(Filed 21 December, 1921.)

1. Courts — General Statutes — Judicial Notice.

An act withdrawing tbe operation of a State-wide law within a certain county will be taken judicial notice of by our courts.

2. Statutes — Amendments — Recorders’ Courts — Actions—Abatement— Constitutional Daw — Appeal and Error.

Where the question of the constitutionality of C. S., 15S6, establishing recorders’ courts by a general act is the subject of the action, and pending the appeal the Legislature has withdrawn the effect or operation of the statute from a certain county wherein the establishment of the court was the subject of injunctive relief, the cause of action abates and the appeal will be dismissed at the cost of each party, and the order restraining the establishment of the particular court will continue to be effective.

Appeal by defendants from Bryson, J., 10 October, 1921, from Caldwell.

Civil action beard on preliminary restraining order before tbe judge bolding tbe courts of tbe Sixteenth Judicial District and by consent of tbe parties at Morganton, N. 0., on 10 October, 1921. Tbe action is to restrain tbe defendants, tbe board of commissioners of Caldwell County et al., from maintaining a recorder’s court in Caldwell County pursuant to a resolution to tbat effect on tbe ground chiefly tbat tbe act under wbicb defendants bad established and were proceeding to organize and maintain said court, C. S., cb. 27, subcb. 4, is unconstitutional. Tbe restraining order was continued to tbe bearing, and defendants excepted and appealed.

Marie Squires, W. G. Newland, and Lawrence Wakefield for plaintiffs.

A. A. Whitener for defendants.

Hoee, J.

Pending tbe appeal, tbe General Assembly of North Carolina, at tbe Special Session 1921, has passed an act, same being House Bill No. 568, Senate Bill No>. 304, withdrawing tbe Sixteenth District, including Caldwell County, from tbe effect and operation of tbe sub-chapter in question, and under and by virtue of wbicb these courts are authorized and maintained, and repealing all laws and clauses of laws in conflict with its provisions. As a result of tbe measure, tbe power to maintain tbe court being withdrawn, tbe court itself is necessarily abolished, and tbe action which concerns only its existence and maintenance must abate. Our decisions on tbe subject are to tbe effect tbat tbe Court will take judicial notice of a public statute of this character. Reid v. R. R., 162 N. C., 355; Wikel v. Comrs., 120 N. C., 451. And involving, as it does, tbe, existence and maintenance of a public office, tbe right to abolish it is well within the legislative power. Mial v. Ellington, 134 N. C., 131. The saving clause as to actions already instituted as contained in C. S., 3948, referring only to rights and interest of a private nature.

In a case of this kind, and under the decisions referred to and others of like import, each party will pay his own cost in this Court, and the judgment as to cost in the court below will stand and be enforced as entered.

Action abates.