#### TAYLOR, v. VANN.

(November 27, 1900.)

1. Gosts — Appeal—Subject-Matter of Action Destroyed— Appellant — Quo Warranto — Supreme Oourt.

■Where the subject-matter of the action is destroyed before the appeal is heard, the judgment below is presumed to be correct until reversed, and no part of the costs should be adjudged against the appellee.

2. Costs — Subject-Matter of Case Destroyed — Oase Settled —Quo Warranto — Supreme Gourt.

The Supreme Court will not determine the merits of a case simply for the purpose of deciding who shall pay the admitted costs.

Clark and Moxtgomery, JJ., dissenting.

*244Civil AotioN, in tbe nature of quo warranto, on tbe relation of J. 0. Taylor against John E. Vann, beard by Judge A. L. Goble, on complaint and demurrer, at Spring Term, 1900, of Heeteoed Superior Court. Erom judgment for plaintiff, tbe defendant appealed.

George Gowper, for plaintiff.

Winborne & Lawrence, for defendant.

Douglas, J.

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*245ing that appears never since to have been followed; but it is significant that in that case tbis Court decided against the plaintiff on appeal 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 appelle. Code, secs. 525, 527, 540. * * * He has an unreversed 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 decisions 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 *246Chief Justice RuffiN, says: “Judge RuyKIN’s conversaney with public ethics, public law, and English and American history seems to have assigned to him the task of delivering the opinions on 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 ofíice, 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 Roths', 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. City of 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 in the case of Taylor 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? *247Moreover, the Supreme Court of the United States has never held or intimated that such was the law in North 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.

CuaRK, J.

(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 *248for tbe term ending on tbe 4tb day of December, 1886. But that time bas expired, and a new sheriff bas been regularly elected for tbe term of two years from tbe 4tb day of Dp.cp.Tn-ber, 1886. A judgment, then, in favor of the plaintiff can not be followed by any practical results. If be ever bad a right to tbe remedy be invokes, be bas been so unfortunate as to lose it by tbe law’s delay. We are of opinion, for this reason, that tbe action should be dismissed, and it is so ordered.” Tbe same ruling (that the Court will not decide an appeal when tbe cause of action bas become extinct, for any reason, during tbe appeal) bas been held in a uniform line of authorities which are cited in Herring v. Pugh, 125 N. C., 437, and reiterated at last term in Commissioners v. Gill, 126 N. C., 86. In Commissioners v. Gill tbe County Commissioners brought a summary proceeding against a tenant before a Justice of tbe Peace for possession of land. It was admitted that tbe land belonged to tbe county, but tbe novel defense was set up that defendant was entitled to possession by virtue of an office of which be bad been dispossessed. Tbe Judge below not sustaining this effort to try title to office as a counter-claim in an action before a Justice of tbe Peace, tbe county recovered judgment. Pending tbe appeal, tbe attempted defense, ceased by expiration of tbe term of office, and nothing could be done except to dismiss the appeal, there being nothing letf to be decided. In this case it is tbe plaintiff’s cause of action which bas expired pending appeal, and hence tbe action must be dismissed, unless we reverse all tbe precedents, and try tbe merits of a dead cause, and determine who would have won if tbe cause of action bad not died, merely to settle who shall pay tbe costs. Whether tbe plaintiff might not have joined a cause of action for fees and emoluments (see McCall v. Webb, 126 N. C., 760), which cause of action might *249have survived notwithstanding the termination of the office sued for, is a question not presented by the record. .

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 *250incumbent, change its chaiucfor or make it property. True, the restrictions limit the power of the Legislature to deal with the office, but even such restrictions may be removed by constitutional amendment. In short, generally speaking, the nature of the relation of a public officer to the public is inconsistent with either a property or a contract right.” There can be no higher authority as to rights or immunities claimed under the Federal Constitution than the decisions of the United States Supreme Court. Hoke, v. Henderson rests upon the doctrine that a piiblic officer has contract or property rights in his office, which are protected against legislative action by the clause of the Federal Constitution which forbids the impairment of the obligation of contracts. The above explicit statement in the latest case (Taylor v. Beckham, 178 U. S., at page 577), reciting the uniform decisions of the highest United States court, and reiterating them, that the nature of a public office is “inconsistent with either a property or contract right” therein by the officer, necessarily puts an end to any right claimed under Hoke v. Henderson. It is henceforward a derelict floating upon the ocean of jurisprudence, and to be avoided. The opinion in Taylor v. Beckham was filed May 21, 1900. Though there are some dissents, there is none as to the proposition above cited. In our own courts every Judge who took his seat upon the bench in 1868, necessarily negatived the doctrine of Hoke v. Henderson, since they recognized thereby the validity of the action of the convention in vacating the life-judgeships held by their predecessors, which the convention could not do if those offices were contracts. In Ward v. City of Elizabeth City, 131 N. C., 1, the Court, composed of the same judges as now, denied the application of Hoke v. Henderson to the facts of that case, and said, “This is the only State of the *25145 which sustains that doctrine ;” i. e., of contract or property rights in an office: In State v. Wilson, 121 N. C., at page 461, Douglas, J"., says: “With the exception of this State, it is the well-settled doctrine in the United States that an office is not regarded as held under a grant or contract, within the constitutional provision protecting contracts.” And further on he says: “Throop,Pub. Off.,sec. 19, citing 92 decisions from the United States Supreme Oourt, and 32 different States; also,' Black, Const. Law, p. 530, and cases cited: Mechera, Pub. Off., secs. 463, 464, citing numerous cases — says that, except in North Carolina, it is well settled that there is no contract, either express or implied, between a public officer and the government, whose agent he is, nor can public office he regarded as the property of the incumbent.” And on page 468, 121 N. C., at page 561, Douglas, J., further says of Hoke v. 'Henderson: “The fact that we are the only State in the Union recognizing the doctrine may well cause us to pause and consider if we have not carried it to the fullest legitimate extent. It may be doubted if the great Chief Justice ever contemplated the extent to which it would be carried.” But since that decision the doctrine has been carried to a still greater and most unexpected expansion by Day's Case, 124 N. C., 362; Wilson v. Jordan, 124 N. C., 683, 33 S. E., 139; White v. Auditor, 126 N. C., 570, and numerous other office cases. The “92 decisions from the United States and 32 State Supreme Courts,” cited by Douglas, J., as holding that there is no property or contract rights in a public office, have been increased in number since, and still without any case to- support Hoke v. Henderson. It is unnecessary to cite them, especially as the utterance of the United States Supreme Court, in Taylor v. Beckham, has given the coup de grace to Hoke v. Henderson, even in its comparatively modest limits, *252before it was extended by tbe recent cases in tbis Court. But it may be interesting and instructive to cite a few of the comments passed upon Hoke v. Henderson, by the highest courts of our sister States.. The Supreme Court of South Carolina, in Alexander v. McKensie, 2 S. C., at page 92, after laying down the doctrine that the Legislature may at will “remove the incumbents of offices created by the Legislature, and put others in their place,” says: “Hoke v. Henderson,, 15 N. C., 1, holds the contrary doctrine, but is without the support of reason or authority.” The Supreme Court of Kentucky, in Standeford v. Wingate, 2 Duv., at page 448, says: “Within the range of our researches, the only adjudged case which could give any countenance to such an unreasonable doctrine is Hoke v. Henderson, 15 N. C., 1. * * * That anomalous decision is not, in our opinion, sustained by consistent argument, which, with all proper respect, we regard as, in principle, a felo de se, even under the Constitution of North Carolina.” In Conner v. Mayor, etc., 2 Sandf., at pages 373, 374, the Court says: “The North Carolina case (Hoke v. Henderson) stands out in strong contrast to every public decision and opinion on the subject which we have seen” — and accounts for the anomaly thus: “It appears to us, with much respect for the learned tribunal which pronounced this judgment, that it was unduly influenced by the common-law rule, derived from prescriptive offices, and operating in a government whose genius and spirit are perhaps in no respect more unlike ours than in this very subject — the source and nature of the rights and interests acquired by public offices.” In 25 Am. Dec., at page 704, the learned annotator, Judge Ereeman, annotating Hoke v. Henderson, says: “Such a doctrine would certainly receive countenance nowhere else. * * * With all deference to the North Carolina courts, the conclusion *253may yet be drawn, with Mr. Pomeroy (Const. Law., sec. 553), that ‘it may therefore be considered as a settled point of constitutional law — settled both by the national and State courts — that a public office bears no- resemblance to a contract, and that Legislatures have full power over the public offices of a commonwealth, except so far as they are restrained by the local Constitutions. The clause of the United States Constitution which prohibits State laws impairing the obligation of contracts has no application whatever to this subject.’ ” The list of similar criticisms might be greatly extended. Hoke v. Henderson was launched in 1831— nearly seventy years ago. In all that time it has received no approval from any other court, and has been treated as an alien by the judicial mind in all the State and Federal courts. After the recent clear enunciation of the United States Supreme Court, in Taylor v. Beckham, supra, Hoke v. Henderson should, in judicial subordination to the paramount authority of that court, in construing the United States Constitution, be held of no authority here; for it is the clause of the United States Constitution, and not any provision of the State Constitution, which has been invoked to set aside the action of the Legislature in dealing with the agents of the State, created by. a previous Legislature. It is small off-set against this consensus of judicial authority to array the eulogistic remarks of counsel, quoted by one of our citizens in an obituary address in honor of his friend, the venerated and distinguished Chief Justice, whose error in delivering the opinion in Hoke v. Henderson is no blot on his fame; for, like all great Judges, he sometimes erred. A reference to Ex parte Garland, 4 Wall., 333, shows that Hoke v. Henderson is not referred to by the Court, nor in fact in the brief of that counsel, which is published in full; and nothing in the opinion militates against the rule laid down *254in Taylor v. Beckham as the uniform ruling of that court, which is that an office is a public agency, in which the office-holder has neither property, nor contract rights. If, as in Commissioners v. Gill, supra, the defense set up by confession and avoidance, had terminated pending the appeal, the appeal by defendant would be dismissed. But here it is the plaintiff’s cause of action which has ceased, pending the appeal, and. to dismiss the appeal would be to affirm, against the defendant (appellant), judgment to recover an office which has ceased to exist, and costs. To do the latter, we must overrule our uniform decisions that when the cause of action dies pending an appeal, the Court will dismiss the action, and will not go on to determine which side “would have won if the cause of action had not died,” merely to adjudicate the costs. But, should we overrule the line of decisions to above purport, still, in deference to the highest court of the republic, we should dismiss this action, for no cause of action is stated in the complaint.

MoNtgombkt, J.,

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.