The progressive farmer. [volume] (Winston, N.C.) 1886-1904, 1895-04-16

ccaQses or action. Rights are entirely
independent of remedies Whatever
was a cause of action at law or q
ground OF relief in equity before Codes.
10 now remedlable in a civil action. and
Whatever was remediless in q civil ac-
ZION, n whatever was remediless be-
lore Is now remediless under the Codes.
L. n OF Pl. and Pr, D. 145."
.Ihere must be some limit to the exer-
Glse OF Jurisdiction under section soy
Il Is well settled that a respectful letter
from the learned members of the bar,
INC represent the parties to this pro
ceedlng, asking the court to advise
Cnem as to some controversy that had
noG' put might in the near future arise.
would give the subject matter of the
communication no standing in the
superior Court, or by appeal here.
1 am at a loss to know how the line
can De drawn so as to guide the legal
PROFESSION and protect the courts
against being forced to spend their
line In deciding speculative questions.
between b rule that the statement of
Iacts sufficient to constitute q cause of
acGlon shall be regarded as an essential
pre-, requisite to the consideration of a
controversy submitted without action.
ana n loose practice of allowing aft
oaVIts suggesting that a question of
vital interest to the public is about to
arise, and requesting the court to re-
IIeVe the parties of the trouble and ex-
pense or proceeding in the prescribed
way, n to give it a proper status in
court. l cannot concur with my breth-
rem in the view that the letter of ad-
vice to the head of a co ordinate branch
Of tho OOuornnOonf 11A NJ ~ O0RO 10 n
precedent for entertaining and decid-
ing this case. There the court followed
a former precedent in advising a CO.
ordinate department (the legislature
about q matter that confronted it at
the moment, and involved grave con.
stitutional question upon which that
department was called upon to act
Immediately. There, the court gave
advice in order to point out the line of
duty, which was prescribed by the
Constitution, and it was not necessary
to render a judgment. Here, we must
either render a judgment or dismiss
the case for want of jurisdiction there
Is no middle ground. If we haven no iuris-
diction, as the modified opinion of the
court seems to concede, then our iudg-
ment is a nullity. It is familiar learn
ing that a Judgment, where the court
has no jurisdiction, is not conclusive.
It seems to me that, where it is con
ceded that a case is cOrGm non JUDGE,
the court Ear render no judgment, and
it is manifestly our duty to dismiss.
unless we mean to hold that any two
private citizens have the same right to
ask for advice about their differences
that the Legislature or the Governor
has to invoke our aid in acting upon a
grave constitutional question, upon
which immediate action is inevitable.
To this proposition l cannot give my
assent, and in my view of the case |
cannot concur with my brethren with
cut asserting to it.
The letter to the Governor which is
referred to, was not an adjudication as
to the rights of the judicial officers
whose terms were in question. But
feeling that they would voluntarily
accept the advice 70 decisive, the court
simply endeavored to exhibit a proper
appreciation of the rights of the judges
and at the same time to show the
courtesy to the Chief Executive of the
State that had been o Sldered due
both departments when similar re
quests had been Heretofore made. But
the Judgment of the court below that
Jones' mortgage is not void, is, as /
understand the opinion of the court,
left undisturbed and is allowed to con-
clude the parties, though the court has
no jurisdiction to try it.
Whatever may be the magnitude Of
the que stion involved, I deem it my
duty to refrain from the expression of
an opinion upon it, just as it would be
proper to decline to respond to a writ
ten request accompanied by a solemn
affidavit and sent, IN an informal way
by some other highly respectable citi-
zen of the State. l therefore dissent
from the opinion of a majority of the
court that there is a properly consti-
tuted case before us.