The proper judgment in an action against a city or town, upon a recovery for necessary expenses is an Alternative, and not a Peremptory Mandamus. (The other points decided are the same as those in Tuclcer v. The Oity of Raleigh, ante, page —. See Syllabus thereto.)
Civil Action, tried before Watts, J., at January Term, 1876, of Wake Superior Court.
The same points were involved in the case of Tuclcer v. The Oity of Raleigh, ante.
There was judgment in favor of the plaintiff, according to the prayer of the complaint, and the defendant appealed.
Busbee & Busbee, for the appellant.
Haywood, Towle and Snow, contra.
Reade, J.
The only point in this case is covered by Tucker v. The City of Raleigh, at this term. It is there decided that the Funding Act of February, 1875, did not require the sanction of the popular vote.
We think, however, that the judgment ought to have been an alternative mandamus, as the City may show cause, as that it prefers to pay the debt rather than fund, &c.
There is no error. Let this be certified.
Per Curiam. Judgment accordingly.