Kistler v. Southern Railway Co.

Supreme Court of North Carolina

Kistler v. Southern Railway Co.

79 S.E. 676, 170 N.C. 666, 1914 N.C. LEXIS 201

DecidedOctober 2, 1914

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This text of 79 S.E. 676 (Kistler v. Southern Railway Co.) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Kistler v. Southern Railway Co., 79 S.E. 676, 170 N.C. 666, 1914 N.C. LEXIS 201 (N.C. 1914).

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Opinion

Pee Cueiam.

Tbis is a proceeding to obtain a determination of tbe question whether tbe defendant can legally transport a barrel of beer from a point beyond tbe State to Morganton, N. 0.; and there deliver it to tbe plaintiff. Tbe plaintiff files a brief contending that chapter 24, sec. 3, Laws 1907, forbidding such act, and tbe act of Congress ratified 3 March, 1913, cannot deprive him of tbe right to receive such consignment. Tbe defendant, in bis brief, avers that be is ready to obey tbe law if be knows what it is, and files a brief in accordance with tbe contention of tbe plaintiff. It is apparent that both parties are interested on tbe same side, and that tbis is really a proceeding to ask tbe advice or opinion of tbe Court on practically a “moot case,” when there is no doubt as to tbe facts. There was no stay of execution, and tbe beer was doubtle.ss delivered and long since consumed.

In Parker v. Bank, 152 N. C., 255, tbis Court held that tbe object of tbe suit was evidently to procure a construction of section 4, cb. 150, Laws 1909, and that it was instituted solely for tbe purpose of obtaining tbe opinion of tbe Court, and dismissed tbe action. That case referred to Blake v. Askew, 76 N. C., 327, in which it was attempted in a similar way to obtain tbe opinion of tbe Court as to tbe validity of special-tax bonds, and where tbe same action was taken. In tbis case it would be necessary to construe tbe above statutes of tbe State and of tbe United States, and we are not willing to pass upon a question of such importance without tbe benefit of a bona fide controversy and full argument by opposing counsel. Tbe Court ba.s refused to entertain a controversy submitted to obtain tbe opinion of tbe Court upon tbe administration of tbe public school system (Board of Education v. Kenan, 112 N. C., 567), or to advise a sheriff as to tbe application of moneys (Milliken v. Fox, 84 N. C., 107; Bates v. Lilly, 65 N. C., 232).

We must, therefore, enter an order,

Appeal dismissed.

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Pee Cueiam.

Tbis is a proceeding to obtain a determination of tbe question whether tbe defendant can legally transport a barrel of beer from a point beyond tbe State to Morganton, N. 0.; and there deliver it to tbe plaintiff. Tbe plaintiff files a brief contending that chapter 24, sec. 3, Laws 1907, forbidding such act, and tbe act of Congress ratified 3 March, 1913, cannot deprive him of tbe right to receive such consignment. Tbe defendant, in bis brief, avers that be is ready to obey tbe law if be knows what it is, and files a brief in accordance with tbe contention of tbe plaintiff. It is apparent that both parties are interested on tbe same side, and that tbis is really a proceeding to ask tbe advice or opinion of tbe Court on practically a “moot case,” when there is no doubt as to tbe facts. There was no stay of execution, and tbe beer was doubtle.ss delivered and long since consumed.

In Parker v. Bank, 152 N. C., 255, tbis Court held that tbe object of tbe suit was evidently to procure a construction of section 4, cb. 150, Laws 1909, and that it was instituted solely for tbe purpose of obtaining tbe opinion of tbe Court, and dismissed tbe action. That case referred to Blake v. Askew, 76 N. C., 327, in which it was attempted in a similar way to obtain tbe opinion of tbe Court as to tbe validity of special-tax bonds, and where tbe same action was taken. In tbis case it would be necessary to construe tbe above statutes of tbe State and of tbe United States, and we are not willing to pass upon a question of such importance without tbe benefit of a bona fide controversy and full argument by opposing counsel. Tbe Court ba.s refused to entertain a controversy submitted to obtain tbe opinion of tbe Court upon tbe administration of tbe public school system (Board of Education v. Kenan, 112 N. C., 567), or to advise a sheriff as to tbe application of moneys (Milliken v. Fox, 84 N. C., 107; Bates v. Lilly, 65 N. C., 232).

We must, therefore, enter an order,

Appeal dismissed.

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79 S.E. 676, 170 N.C. 666, 1914 N.C. LEXIS 201, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kistler-v-southern-railway-co-nc-1914.

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