BENVENUE P.-TA v. Nash County Bd. of Ed.

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170 S.E.2d 473 (1969)

275 N.C. 675


No. 16.

Supreme Court of North Carolina.

November 19, 1969.

*476 Don Evans, Rocky Mount, for plaintiff appellants.

I. T. Valentine, Jr., Nashville, for Nash County Board of Education.

James W. Keel, Jr., Rocky Mount, for Nash County.

LAKE, Justice.

When, pending an appeal to this Court, a development occurs, by reason of which the questions originally in controversy between the parties are no longer at issue, the appeal will be dismissed for the reason that this Court will not entertain or proceed with a cause merely to determine abstract propositions of law or to determine which party should rightly have won in the lower court. Kendrick v. Cain, 272 N.C. 719, 159 S.E.2d 33; In re Assignment of School Children, 242 N.C. 500, 87 S.E.2d 911; Savage v. Kinston, 238 N.C. 551, 78 S.E.2d 318; Cochran v. Rowe, 225 N.C. 645, 36 S.E.2d 75; Glenn v. Culbreth, 197 N.C. 675, 150 S.E. 332; Reid v. Norfolk Southern R. R., 162 N.C. 355, 78 S.E. 306; Wallace v. Town of North Wilkesboro, 151 N.C. 614, 66 S.E. 657; Wikel v. Board of Commissioners, 120 N.C. 451, 27 S.E. 117; Russell v. Campbell, 112 N.C. 404, 17 S.E. 149; Strong, N.C. Index 2d, Appeal and Error, ยง 9. Such a situation may arise where there has been a settlement and release of the plaintiff's claim following the judgment in the lower court (Kendrick v. Cain, supra), or where, by the repeal of a statute, an administrative board is deprived entirely of a power which the plaintiff sought to restrain it from exercising in alleged disregard of procedural requirements in effect when the judgment below was rendered (In re Assignment of School Children, supra), or where, pending his appeal from a judgment denying restitution to him of certain personal property, the appellant has come into its possession (Russell v. Campbell, supra), or a temporary restraining order having been dissolved, the transaction which the plaintiff sought to enjoin is completed pending the appeal (Wallace v. Town of North Wilkesboro, supra).

In the present action, the plaintiffs complained of and sought to enjoin the defendant Board of Education from doing two things: (1) Diverting a specific building at the Benvenue School from use in the *477 education of pupils in grades 1 through 8 to use by the Nash Technical Institute for vocational education of adults; (2) the expenditure of county tax funds for the maintenance and upkeep of that building when so used. While the prayer of the complaint for injunctive relief against expenditures is stated in terms broad enough to include any expenditures for the operation of the "Nash Technical Institute facility," the only such facility to which reference is made in the complaint is that alleged to have been in operation in the said building at the Benvenue School and the only expenditures alleged in the complaint are those made "for the maintenance and upkeep of the said high school building."

Since the decision of the Court of Appeals was rendered, all activities of the Nash Technical Institute at the Benvenue School have ceased, the Institute has moved to a new location and the building in question has been reallocated by the Board of Education to, and is being used by it exclusively for, the education of elementary public school pupils. Consequently, though the plaintiffs did not prevail in the lower courts, the acts and proposed acts against which they sought injunctive relief have now been discontinued. It is not suggested that a renewal of them, or any of them, is contemplated. Thus, the controversies which were the subject matter of this action have ceased to exist and questions raised by the appeal are moot.

In Wikel v. Board of Commissioners, supra, this Court refused to consider an appeal raising grave questions of constitutional law where, pending the appeal to it, the cause of action had been destroyed so that the questions had become moot. Similarly, we decline in this action to pass upon the constitutional questions which were brought to us by this appeal but which have now become abstract questions of law.

We, therefore, neither approve nor disapprove the rulings of the Court of Appeals or those of the superior court in the present action. The authority of the defendants, or either of them, to permit the use by the Nash Technical Institute of any properties at the Stony Creek School or to appropriate or expend any tax funds for the aid of the Institute in any operation by it at the Stony Creek School is not before us in the present matter.

Appeal dismissed.

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