Walker v. Moss

97 S.E.2d 836 (1957) 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.

No. 164.

Supreme Court of North Carolina.

May 1, 1957.

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

Allsbrook & Benton, Crew & Crew, Roanoke Rapids, Johnson & Branch, Enfield, Dickens & Dickens, Scotland Neck, for defendants, appellees.

George B. Patton, Atty. Gen., for the State.

HIGGINS, Justice.

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 March 27, 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 March 27, 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.