Solicitor ex rel. Mills v. Mills, 40 N.C. 244, 5 Ired. Eq. 244 (1848)

Aug. 1848 · Supreme Court of North Carolina

40 N.C. 244, 5 Ired. Eq. 244

THE SOLICITOR ON THE RELATION OF MARVILL MILLS AND AL. vs COLUMBUS MILLS AND AL.

Where, under authority conferred by an Act of Assembly, commissioners are appointed by a County Court to lay off a County seat& c., a Court of Equity has no power, on the complaint of relators through the solicitor, not alleging that any private irremediable injury is to be done to them, to interfere with the proceedings of such commissioners.

If such commissioners are guilty of any breach or omission of duty towards ' the public, the Courts of common law, through the high officers of the State, will afford relief by a writ of mandamus or quo warranto.

Appeal from an interlocutory order of the Court of Equity of Rutherford County, at the Spring- Term 1848, his Honor Judge Batti.e presiding.

The Legislature at the last Session established the County of Polk ; and by a supplemental Act directed, that a tract oí land, containing not less than 100 acres, should be purchased and a conveyance taken to the chairman of the County Court and his successors in office for the use of the County ; upon which a town should be laid off, where the Court-house and Jail should be erected and the Courts should be held after the completion of the Court-house; and appointed William S. Mills, James Blackwell, Jonathan King, Dr. C. Mills and William F. Jones, commissioners to locate the said County seat at or within five miles of the residence' of Murrell Mills, and to purchase and take a conveyance for the land. By other parts of the Act, the first term of the County Court was fixed on the 6th Monday after the 6th Monday of December 1846, and the Court was required at the first session to appoint five commissioners to lay off the lots of the town, and, after selecting those requisite for public uses, to sell at auction the others at such time and after such notice as the Court might direct, upon a credit of one.and two years; and the proceeds of the sale were appropriated to building a Court-house and jail.

The present proceeding is an information by the solicitor for the State for the seventh circuit, hied in the Court of Equity for Rutherford County, upon the relation of Marvill Mills and William Taber for themselves and on behalf of the other citizens of Polk County. It charges that Jonathan King, believing that a majority of the commissioners, from selñsh pecuniary motives, had determined to make a location at one extreme end of the County, to the injury of the citizens, refused to act as a commissioner. That, after such refusal, William S. Mills, Blackwell and C. Mills, agreed upon a location, known as“Hawkin’s Ridge,” and contracted for a conveyance of the land, and in pursuance thereof procured a deed to be executed to the chairman of the County Court of Polk and his successors in office for a part thereof containing 72 acres, that for the residue thereof no conveyance had been as yet obtained and that, in consequence of the right of one Wales and Porter to any mines or minerals that might be in the land, a good title could not be had therefor, and moreover, that several of the bargainors in the deed for the 72 acres were married women, who had not fully executed the same by acknowledgment thereof upon privy examination, and that, in fact, at the execution thereof, no chairman of the County Court had been duly appointed, by reason that the day fixed by the Act for the holding of the Court was an impossible one. The infor* mation further charges, that, at a Court held on the Sth Monday after the 4th Monday oí December, 1846, to-wit on the 4th Monday of February 1847, George J. Mills, Joseph M Carson, Henry Earle, and the said Columbus Mills, and William F. Jones, were appointed commissioners to lay off town lots and sell them, as provided for in the Act: That the majority of the said commissioners refused to proceed_to lay off the town at the place seleeted by the other commissioners, upon the ground that the location had not then been legally made : and that thereupon William S. Mills, Blackwell and Dr. C. Mills proposed to Jonathan King to meet them in conference on their duties, and assured him, that they had abandoned the location of “Hawkins’ Ridge” and were willing to fix on some other, more central and just to all the citizens of the County; and that under this assurance, King met those and the other commissioner Jones, on the 25th of May 1847, and proposed to act with them, if they would agree in writing to select another location within certain bounds, which proposition they refused, and he then notified them, that he would not act: That thereupon the other four proceeded, by themselves, to vote for the location, and that three of them, William S. Mills, James Blackwell and Dr. C. Mills, voted for “Hawkins’ Ridge,” and Jones voted for another place ; and that those three persons, William S. Mills, Blackwell, and Dr. C. Mills, fraudulently combined to select the place which they did, in order to promote their private interest by having the County seat in the vicinity of their own lands and of a turnpike road in which they are stockholders, to the injury of a majority of the citizens of the County: That “Hawkins’ Ridge” is an extensive ridge of many hundred acres and is indefinite ; and that the land conveyed to the Chairman of the Court is not within five miles of the residence of Murrell Mills, and is within two miles and a half of one extreme of the County.

The information further charges, that, after the selecmade on the 25th of May, four of the commissioners appointed by the County Court, namely, Messrs. Carson, Mills, Earle, and Jones met, and, without the sanction co-operation of the others, George J. Mills, laid off the on the lands so selected and purchased by the first of commissioners and had advertised the lots for sale the 21st of July, 1847, the bill being filed on the 19th the same month: That by a sale of the lots on that irreparable injury would be done to the citizens of County, because, from the doubts generally enter* lained of the legality of the location, the sufficiency of the to the land, and of the validity of the appointment of commissioners and of their authority to make the sale, lots would sell much lower than under different circumstances they would ; and that, consequently, there would be a necessity for taxation on the citizens of the county for the erection of the pubiic buildings, and the Justices of the County Court under a mistaken notion of their duty would levy a tax for that purpose ; and that actings of the said commissioners, under the color of authority, tend to mislead the citizens of the County, to engender excitement and litigation, and to the imposition additional taxes, and defeat the object of the Legislature in establishing the County, namely, that the County seat might be convenient to all the citizens of the County.

The prayer is for an injunction to the commissioners George J. Mills, Columbus Mills, William F. Jones, Joseph M. Carson and Henry Earle, to restrain them from selling or in any way disposing of the town lots or otherwise acting as commissioners under the said appointment. The injunction was granted upon the bill, as prayed. At the succeeding term the defendants answered, except George J. Mills, who allowed the bill to be taken pro confesso; and upon their answers the other defendants moved to dissolve the injunction, insisting, moreover, that there was no ground of equity, on which the bill could be sustained, and that it was improperly filed in the name of the Solicitor, instead of that of the Attorney General: that the Court of Rutherford had no juris.diction of the cause, as the land was in Polk and all the parties lived there. The Court refused to dissolve the injunction, but allowed the defendant to appeal.

Gaither, Baxter and Edney, for the plaintiff.

N. W. Woodfin and Bynum, for the defendants.

Ruffin, C. J.

The answers filed fully remove the imputation upon the integrity of the commissioners, and meet the allegations respecting the defects in the title and conveyance, and the inconvenience of the place solicited to the mass of the people of the county, and upon the merits of the case seem clear for the defendants, according to the answers. It appears, however, that there was a mistake in the act in naming the person, at whose house the County Courts were to be held and within five miles of whose residence the county seat was to be fixed by calling him Murrel Mills, when there is no such person m the County, and the answers state that Marvill Mills was meant. That circumstance and the singular mistake respecting the periods for holding the Courts create the only difficulty, that could be raised in the case, by giving colour to the doubt, as to the power of the justices to hold a Court, appoint a chairman and the commissioners, or do any other acts. We do not think there is a great deal in an objection of that kind, when urged in opposition to the entire administration of justice or the existence of any judicial tribunal in a County. But the court does not deem it necessary to discuss those questions, nor to advert to the answers particularly, or to the other objections taken in the Court below, one of them excepted, because on that our opinion is clear, that the bill will not lie. It is, that this is a subject not cognizable in a Court of Equity. It is an attempt to restrain public agents in the discharge of a public duty from per» forming their office, because they are acting or supposed tobe acting so unfaithfully, corruptly, and illegally to detriment, not of any individual in particular, but of public at large, or of a county at least. There is no such jurisdiction, we think. If, indeed, persons acting under a statute as commissioners to lay out a road, for example, or perform any other function of the like naunnecessarily and improperly encroach upon the rights and property of the citizen, or erect a nuisance to his annoyance and injury, doubtless a Court of Equity will, at the suit of the citizen, protect him by injunction'. For the color of a public appointment, though conferred even directly by the Legislature, cannot justify private wrong, nor induce the Court to withhold its power of preventive justice in anticipation of irremediable mischief to the citizen, if the case be otherwise a proper one to call for such an exertion of the power of the Court. But here no one complains of any such impending injury; but the gravamen of the bill is, that the Court is to be placed at a point, not as convenient to a majority of the citizens as it might be, and, secondly, that owing to certain doubts of the legality of the proceedings, in making the selection and appointing agents for the sale of the lots, as good prices cannot probably be had for the lots, as if these were no such doubts. That is said to constitute it a case of impending irreparable loss, calling for the interposition of the Court of Equity. Now, if it were such a case of loss as that supposed, still these relators would have no right to institute this proceeding, for they have sustained no private wrong in the matter to be redressed, nor have they a seperate interest to be protected. The loss, if any, is to fell on the public, the State, or the County, and the power and duty ©f guarding those interests are not in private persons, undertaking the office of relators, but devolve on the high officers of the State, acting in their own names ex-officio. But, if this were an information by the Attorney General ex-officio, we should still hold, that it would not lie. We know not of such a jurisdiction, and no instance of its exercise has been cited to us. The case made in the information is one of usurped public authority, or of the illegal and corrupt exercise of a public power ; acts, which amount to offencesor defaults,to be remedied in a different way. The State does not come into the Court of equity to enjoin her officers against a breach or omission of duty, but she enforces the performance of a public trust by mandamus or enquires into their authority, and deprives them of that usurped, by Quo warranto. That would have been the proper course here, if the officer charged with that duty had, for reasons affecting the public, deemed this a fit case for his ex-officio interference, a thing that could hardly be expected under the circumstance. Equity can no more interfere to prohibit the commissioners from exercising their judgments in the selection of a place, for a County town and public buidings or from raising money for the erection of those buildings by a sale of the town lots, then it would to prevent by injunction the justices of the County from laying a tax for those or other purposes, that some one might think impolitic and pre-judicial, or to compel them to levy one, that might be beneficially applied. Then commissioners and the justices of the peace in such cases act as political agents, and are answerable crirninaditer for corrupt misfeazances or nonfeazances, and maybe enforced to do their duty by means provided by the common law, or such as may be provided by the legislature. A chancellor cannot undertake to interfere with their political functions, either to punish or prevent the commission of crimes or acts that partake of the nature of crimes, of public offences of commission or omission — we might as well undertake to issue an injunction upon the ground that it was impolitic to establish the County. For this reason the Court holds that the injunction ought to have been dissolved with costs, to be paid by the relators, who must also pay the costs in this Court.

Per Curiam.

Ordered to be certified accordingly.