Kistler v. Southern Railway Co.

[The following per curiam opinion in A. M. Kistler v. Southern Railway was rendered by the Supreme Court 29 October, 1913. The motion of defendant to reinstate the case for argument was allowed 18 November, 1913, and the case set for hearing at February Term, 1914, and accordingly argued 5 February, 1914. The case went over under advisari to Fall Term, 1914, and aper curiam order dismissing motion to reconsider was filed 7 October, 1914,

WALKER and ALLEN, JJ., dissenting. By inadvertence the opinion was not published in the 168 N.C.] Action to recover one barrel of beer consigned to the plaintiff, and heard upon an agreed statement of facts. There was judgment in favor of the plaintiff, and the defendant excepted and appealed. This is a proceeding to obtain a determination of the question whether the defendant can legally transport a barrel of beer from a point beyond the State to Morganton, N.C. and there deliver it to the plaintiff. The plaintiff files a brief contending that chapter 24, sec. 3, Laws 1907, forbidding such act, and the act of Congress ratified 3 March, 1913, cannot deprive him of the right to receive such consignment. The defendant, in his brief, avers that he is ready to obey the law if he knows what it is, and files a brief in accordance with the contention of the plaintiff. It is apparent that both parties are interested on the same side, and that this is really a proceeding to ask the advice or opinion of the Court on practically a "moot case," when there is no doubt as to the facts. There was no stay of execution, and the beer was doubtless delivered and long since consumed.

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