Coburn v. Board of County Commissioners
131 S.E. 372
N.C.
1926
Check Treatment
Clarkson, J.

A temporary restraining order was issued by Judge Lane, and the case came on for hearing at the July-August Term, 1923, of Swain County Superior Court before his Honor, Judge Bryson. “When and where it was agreed by counsel for all the parties that the court should hear all the allegations and proofs made and offered, and determine the rights of all the respective parties to this litigation.” . . . And being heard, when and where by consent of counsel representing all of the parties the court adjudges as follows: “It is ordered by the court that construction work on the highway now being built in Forney’s Creek Township, and fully described in the pleadings herein be suspended at its present terminus at Hazel Creek until route from that point to the Tennessee line shall be selected and approved by the State Highway Commission of North Carolina, so that said road, when .completed, shall become a part of an interstate road connecting the highway system of North Carolina with the highway system of the State of Tennessee. . . . This cause is retained upon the civil issue docket of Swain County to the end that the court may make such further orders or decrees as may become necessary for the protection of the rights of all parties.”

In March, 1925, the defendants gave notice that they would move before his Honor, T. B. Finley, judge, at the March Term of Swain Superior Court, to vacate the restraining order provided for in the original decree insofar as it restrained the defendants, highway commissioners, from going forward with the construction of the highway *72 from Hazel Creek to the State line. Upon the hearing of this motion the defendants, by consent, offered in evidence letters set out in the record <which were treated as affidavits. They also offered oral testimony and petitions. The plaintiff offered oral testimony to the effect that beyond Hazel Creek to the Tennessee line there were only three or four families owning property of their own; that there were quite a number of people residing between Hazel Creek and the Tennessee line, but these were practically all employees of the Kitchen Lumber Company, whose lumbering operations would be completed in two or three years. Upon this testimony the defendants asked the court to dissolve the original injunction restraining the building of said road beyond Hazel Creek.

Plaintiff contends that the court erred in finding as a fact “that Tennessee authorities have suggested their willingness to connect with the Forney’s Creek highway if same was constructed.” That there was no evidence to support the finding — we think the finding immaterial. It is well settled law that ordinarily a consent judgment is a binding contract. Walker v. Walker, 185 N. C., 380; Distributing Co. v. Carraway, 189 N. C., 423; Smith v. Smith, 190 N. C., 764.

One of the parties to the consent judgment was a governmental agency —the board of highway commissioners of Forney’s Creek Township. Bank v. Comrs., 119 N. C., 226 (cited in the Distributing Co. case, supra), says: “Consent judgments are in effect merely contracts of parties, acknowledged in open court and ordered to be recorded., As such they bind the parties themselves thereto as fully as other judgments, but when parties act in a representative capacity such judgments do not bind the cestuis que trustent unless the trustees had authority to act, and when (as in the present case) the parties to the action, the town authorities, had, as appears above, no authority to issue the bonds, their honest belief, however great, that they had such power would not authorize them to acquire such power and bind the town by consenting to a judgment. It is not a question of fraudulent judgment but a void judgment from want of authority to consent to a decree to bind principals — the taxpayers — for whom they had no authority to create an indebtedness by consenting to a judgment, any more than they would have had by issuing bonds. If authorized to create the indebtedness, either the bonds or the consent judgment would be equally an estoppel, but as they had no such authority neither bonds nor judgment is binding on the taxpayers. It is not their bond or judgment.” Brown v. R. R., 188 N. C., p. 52.

In Murphy v. Greensboro, 190 N. C., 277, it was held: “In the next place, it is alleged and admitted by the demurrers that after the bids were opened and before the contract was awarded a committee of three was appointed to determine the award under an agreement that the members of the council would let the contract as the committee should *73 .recommend. In substance this is an allegation that the councilmen attempted to abdicate their trust by a delegation of their authority. That they were acting in a fiduciary capacity seems not to- have been controverted. ‘The principle is a plain one/ says Dillon, ‘that the public powers or trusts devolved by law or charter upon the council or governing body, to be exercised by it when and in such manner as it shall judge best, cannot be delegated to others.’ Sec. 24.4. This principle may not prevent the delegation of duties which are ministerial; but here the trust committed to the city council involved the exercise of functions which partake of a judicial character and may not be delegated. 2 Dillon on Mun. Corp., sec. 811.” Provision Co. v. Daves, 190 N. C., p. 7.

In S. v. Scott, 182 N. C., 880, it was said: “In Glenn v. Comrs., 139 N. C., 421, our Court said: ‘If an ultra vires act were being threatened, the courts would enjoin it.’ In the following cases it is said when a discretionary power is exercised wrongfully, or transcends the authority of the officers, or is ultra vires, or when there is a manifest abuse of discretion, the courts will enforce or enjoin the act, as the case may be, at the suit of a citizen, or taxpayer, and whenever the court has declined to intervene it has been on the ground that the act complained of was infra vires," citing a wealth of authorities. The facts in the above case approbate: Where a statute prescribes the means for the exercise of a power granted by the act, no other or different means can be implied as being more effective or convenient, and the Legislature having incorporated a State Board of Public Accountancy, giving it the power to determine upon examination whether applicants for license therein are qualified to receive them, it is for the courts of the State, upon proper action, to pass upon the question of whether the board acts ultra vires in holding an examination beyond the boundaries of the State upon the request of nonresidents desiring to obtain a certificate, and a declaration in the fixing of such place that it would be the last time the board would hold an examination outside the State is not binding or controlling on the question.”

This consent judgment was agreed to at July-August Term, 1923. This motion to dissolve the injunction was finally passed on 22 April, 1925. The bonds were sold and the money is now in the bank- — -sufficient to build this road. Is it possible that the board of highway commissioners of Forney’s Creek Township could sell the bonds and perhaps at a lower rate of interest, put the money in the bank, as it has done, and keep it there until the State of Tennessee saw fit to build the connecting link? If this could be done, the fund might be tied up for all time. True the road from Hazel Creek may be a dead end against the mountains at the Tennessee line — the location of the road is a matter in the sound discretion of the board of highway commissioners of Forney’s *74 Creek Township. Tbe board of highway commissioners of Forney’s Creek Township cannot delegate its discretion, stop its work and subject its will to the Tennessee highway officials. Such an attempted act on its part would have been void, ultra vires and beyond its power. But from a liberal construction of the judgment or agreement, it would appear that such was not intended as a finality. We find the concluding clause of the judgment (other than cost agreement), as follows: “This cause is retained upon the civil docket of Swain County to the end that the court may make such further orders or decrees as may become necessary for the protection of the rights of all parties.”

This consent judgment left a discretionary power in the court to make such orders or decrees for the protection of the rights of all• parties. It is well settled that for abuse of discretion the courts will control the action of highway commissioners, boards of county commissioners and like governmental agencies, but this is seldom exercised unless conduct, so unreasonable as to amount to an oppressive and manifest abuse, is shown. The court below found as a fact that the highway commissioners have not abused its discretion as' to location of the road. The attempted discretion that we here discuss is that which would make illegal and void so much of the consent judgment that requires the suspension of work on the highway in this State until an agreement can be had with the highway officials of the State of Tennessee making a connecting link — an interstate road. We have no doubt that the highway officials of Tennessee will in time make this important connecting link, but the board of highway commissioners of Forney’s Creek Township cannot tie up the taxpayers’ money in this State until the Tennessee road officials come to an agreement — they most likely will, but suppose they should not?

In Lassiter v. Comrs., 188 N. C., 383, it is said: “Granted the power, it is fully established that its discretionary exercise is for the commissioners, and the courts are not permitted to interfere unless their action is so unreasonable as to amount .to an oppressive and manifest abuse. Peters v. Highway Commission, 184 N. C., p. 30; Lee v. Waynesville, 184 N. C., p. 565; Newton v. School Committee, 158 N. C., p. 186-188; Ward v. Comrs., 146 N. C., p. 534; Brodnax v. Groom, 64 N. C., p. 244.” Parks v. Board of Comrs., 186 N. C., p. 490.

The plaintiff contends that the court erred in finding as a fact: “That the North Carolina Highway Commission has approved the location suggested by the highway commissioners of Forney’s Creek Township as a State highway to the Tennessee line.” ¥e think this also immaterial from the view we take. This entire matter as to the location of the road in North Carolina was a discretionary power in the board of highway commissioners of Forney’s Creek Township. It was not a State *75 road, and the State Highway Commission had nothing to do with the location of the road. As a matter of policy, it is wise to have mutual cooperation, but this discretionary power of the board of highway cotn-missioners of Forney’s Creek Township cannot he delegated. The other assignments of error of plaintiff are covered by the discussion under the first assignment of error.

From the entire record, the judgment below is

Affirmed.