Walker v. Moss, 246 N.C. 196 (1957)

May 1, 1957 · Supreme Court of North Carolina

246 N.C. 196

JAMES R. WALKER, JR., v. C. D. MOSS, W. D. HARDEN and E. DANA DICKENS, Constituting the BOARD OF ELECTIONS OF HALIFAX COUNTY.

(Filed 1 May, 1957.)

1. Evidence § 3—

The Supreme Court is required to take judicial notice of a public law of this State.

3. Appeal and Error § 6—

An action to determine plaintiff’s right to have his vote counted in the tally for the votes for the office of a member of a county board of education becomes moot and must be dismissed when, pending the appeal, the General Assembly, pursuant to a public law, has appointed the members of the county board of education.

Appeal by the plaintiff from Stevens, J., August, 1956 Term, Halifax Superior Court.

In this civil action the plaintiff sought to invoke the Uniform Declaratory Judgment Act and asked the court “for a declaration of his right to have his vote for one member of the county board of education counted in the tally for the votes for that office; that plaintiff seeks a declaration declaring Chapter 1104 of the 1955 Session Laws of North Carolina unconstitutional.” The defendants filed a written demurrer, also demurred ore tenus. The demurrers were sustained, and the plaintiff appealed.

Taylor & Mitchell and James R. Walker, Jr., for plaintiff, appellant.

AUsbrook & Benton, Crew & Crew, Johnson & Branch, and Dickens <& Dickens for defendants, appellees.

George B. Patton, Attorney General, for the State.

Higgins, J.

The demurrer ore tenus challenges the complaint upon ‘the ground that it fails to state a cause of action for that the General Assembly of North Carolina under the mandatory provision of the statute is required to appoint members of county boards of education, G.S. 115-18. While the law permits political parties in primaries or in conventions to make nominations and have them declared to the State Superintendent of Public Instruction to be transmitted to the Chairman of the Committee on Education of the House of Representatives, however, the appointment must be made by the General Assembly.

As provided in G.S. 115-19, the General Assembly on 27 March, 1957, ratified an Act appointing boards of education for the designated counties of the State, including Halifax. The appointments became effective the first Monday in April, 1957, and continue in effect for two years. The Act of 27 March, 1957, is a Public Law of the State of North Carolina, of which this Court is required to take judicial notice. The appointment already having been made by the proper authority, the questions raised by plaintiff are now moot.

The cause is remanded to the Superior Court of Halifax County where judgment will be entered dismissing the action.

Remanded for Judgment Dismissing the Action.