Jackson v. Board of County Commissioners

88 S.E. 521, 171 N.C. 379, 1916 N.C. LEXIS 89

• Court: Supreme Court of North Carolina
• Decided: April 19, 1916
• Status: Published

Opinion

BbowN, J.

It appears in the record tbat at October Term, 1915, bis Honor, Judge Cline, presiding, declared tbat tbe present courthouse for Surry County is inadequate for public purposes, and tbat tbe county jail is far worse in all respects than tbe courthouse, and tbat tbe county is growing both in population and wealth and well able to bear tbe expense of tbe erection of modern and suitable buildings.

Tbe judge then “respectfully suggests and requests tbat tbe solicitor of this judicial district prepare and send a bill of indictment to tbe next grand jury, charging tbe commissioners of this county witb neglect of official duty unless in tbe meantime they shall have actively commenced tbe erection, at tbe present sites, of a courthouse and jail which will meet tbe requirements of tbe law and tbe needs of the citizens of tbe county.”

Tbe plaintiff seeks this injunction upon two grounds, as set out in tbe brief: First, tbat tbe order made by Judge Cline is void for want of power to make it; and, second, tbat tbe order made by tbe commissioners hereinbefore set out was made because of tbe coercion of Judge Cline, which destroyed tbe discretion of tbe board of county ■ commissioners in making tbe order, and tbat it was not made of their own volition.

Tbe first ground is untenable for tbe reason tbat if Judge Cline’s order is without jurisdiction, tbe defendants, tbe board of commissioners, need not obey it; and if they should be indicted or charged witb contempt in disobeying such order, its invalidity would be a matter of defense for them. But as we construe tbe order, it does not command tbe commissioners to do anything. It is simply a request to tbe solicitor of tbe district to send a bill of indictment charging tbe commissioners with neglect of official duty. It does not order the commissioners to do anything, and is not directed to them. If they should be indicted in accordance with the recommendation of the judge, they would have every opportunity to set up any available defense, as was done in S. v. Leeper, 146 N. C., 655. The fact that the judge made such a recommendation do the solicitor affords no reason why the defendant board of commissioners should be enjoined from carrying out the provisions of the order made by them at their December meeting.

As to the second ground, that the defendants should be enjoined because they are acting under duress, that is likewise untenable. In the first place, there is no evidence that the board of commissioners is acting under duress. It may be that the recommendations of the judge have influenced them to provide suitable public buildings for county purposes. Because of that it does not follow that they are coerced into doing a thing which their sound discretion does not approve. In any event, the allegation that they are acting under duress is no ground for injunction. If the commissioners are of the opinion that the judge’s recommendations are not well founded, it would be their duty to act upon their own judgment instead of following the recommendation of his Honor. The board of commissioners of the county is a body to whom the law entrusts the administration of such matters. Such board is clothed with the power to order the erection of necessary public buildings for the county. It is a matter within the sound discretion of the county authorities and their discretion will not be reviewed by the courts except when mala fieles is shown. The building of a courthouse is a necessary county expense, and the board has full power, in their sound discretion, to repair the old one or to erect a new one, and in order to do so they may contract such debt as is necessary for the purpose. Vaughn v. Comrs., 117 N. C., 429; Brodnax v. Groom, 64 N. C., 244; Haskett v. Tyrrell Co., 152 N. C., 714. It should be borne in mind, however, by the county commissioners that while they are clothed with the necessary power to contract such indebtedness, they have no power to levy a special tax out of which to pay the interest and create a sinking fund, unless they have the special authority of the General Assembly. The interest on such bonds would have to be paid out of the general revenues and income of the county. Comrs. of Pitt v. McDonald, 148 N. C., 125. Under such conditions it would be well for the commissioners to consider carefully the advisability of prosecuting the work or of offering their bonds for sale until they are secured by some special legislation. There is nothing-in this record that indicates that the board of commissioners are acting-in bad faith, but rather they appear to be acting for what they think is for the best interests of the county. When so acting they are within their legal rights, and cannot be coerced by any findings or orders made by the judges of the Superior Courts.

The complaint in this case, we think, fails to state a cause of action, and the action is, therefore, dismissed.

Affirmed.

AlleN, J., dissents.