52 S.E. 58 | N.C. | 1905
The defendant demurred ore tenus and moved the court to (416) dismiss the action because the complaint did not set forth facts sufficient to constitute a cause of action. Motion allowed and plaintiff appealed.
Two causes of action are set forth in the complaint, although not stated separately as directed by The Code. The plaintiff first relies upon the contract made with his ancestor, during 1882, by which he insists that the county of Moore is obligated to maintain and keep in repair the public bridge across Deep River, which was, pursuant to said contract, built by his father, who then owned the land upon which he erected a public mill. That performance of this contract may be specifically enforced by the writ of mandamus. This claim is entirely independent of the demand that the defendant be enjoined from erecting a second bridge one-half mile below the present bridge. It is very doubtful whether the two causes of action, one to enforce a contractual right having no (417) connection with his right, as a taxpayer, in common with all other citizens of the county, and the other dependent entirely upon such relation to enforce the performance of a public duty, can be joined. As his Honor disposed of the cause upon a broader ground, we prefer not to pass upon this question of pleading. We do not think it competent for a board of commissioners to enter into a contract with a citizen, to perpetually maintain and keep in repair a public road or bridge, giving to such citizen a cause of action against the county whenever, in the exercise of its discretion in the interest of the public, the same or another board shall deem it proper to discontinue such road or bridge. The power vested in and duty imposed upon boards of commissioners to open and maintain roads and erect and keep in repair public bridges, is for the benefit of the public, and they have no power to exercise it for any other purpose, or to bind their successors in that respect. The Legislature, and the commissioners are but its agents, cannot do so. In Bridge Co. v. Commissioners,
For a second cause of action, plaintiff sues in his right as a taxpayer to enforce the performance of a public duty. While the right to enforce by mandamus the discharge of a ministerial duty by a public officer is well settled and often exercised, it is equally well settled that when any discretion is vested in such officer in regard to the manner of performance, the courts will not order a mandamus. The duty to open and to discontinue highways and bridges, is vested in the commissioners of each county. Code, sec. 17, subsec. 15, chap. 50. The willful failure to discharge this or any other public duty is a misdemeanor, and upon conviction, removal from office follows. Code, sec. 1090. A commissioner failing to discharge any duty imposed upon him by law, may also be sued for a penalty of $200. Code, sec. 711; Turnerv. McKee,
We concur with his Honor that upon the allegations in the complaint the plaintiff was not upon either cause of action entitled to the relief demanded. There is
No error.
Cited: Edwards v. Goldsboro,
(423)