41 S.E. 787 | N.C. | 1902
It is enacted by chapter 531, Laws 1901, that "the (559) Board of Commissioners of Chatham County, upon the petition of a majority of landowners residing in any part or territory of said county, are hereby directed to establish the stock law in such territory, to take effect at such time as may be designated in such petition."
The complaint in this action, brought by Theodore H. Perry and others, avers that such petition for the territory designated therein was signed by a majority of the landowners residing in said territory and was presented to the defendants, commissioners of said county, at their regular meeting in January, 1902, and that the defendants in their order *384
refusing the petition adjudged that said petition was signed by a majority of the landowners residing in said described territory, but refused to establish the stock law therein because, in part of said territory, the stock law had already been established, and, without the signatures of landowners residing in that part of the territory, the petition would not have a majority of landowners resident in said territory. The plaintiffs ask for a mandamus to the defendants forthwith to establish the stock law in said territory. The reason given by defendants for their refusal is invalid, and has already been so adjudged in Smalley v. Commissioners,
1. That plaintiffs' remedy was by certiorari. There being no appeal provided, the plaintiffs might have elected to take the case up bycertiorari, and have asked for a procedendo to the commissioners. Hillsboro v. Smith,
2. That the court could not control the exercise of judicial powers, and it is the duty of the commissioners to pass upon the petitioners and ascertain whether they are adult landowners resident in said limits, and not infants, idiots and lunatics. But the order made by defendants, set out in the complaint and admitted by the demurrer, adjudged that the petition was "signed by a majority of the landowners residing within the following-described territory in Chatham County, asking for the establishment of a no-fence law therein."
3. That the plaintiffs were not interested, as it does not appear they were resident landowners. The action is in the name of Theodore H. Perry and others, resident landowners in two townships named, and while these township limits may perhaps not be identical with those of the proposed stock-law territory, the complaint avers that the petition was signed by a majority of the resident landowners in said proposed stock-law territory. This is admitted, and as the petition of Perry and others is in behalf of themselves and such landowners of the territory who have been adjudged a majority of the landowners resident therein, it sufficiently appears that the action is prosecuted bona fide in behalf of such petitioners.
It is objected that an alternative mandamus should first issue. This is true where the adjudication of the plaintiff's rights is not conclusive *385 that the mandamus should issue, as where, though an indebtedness is adjudged valid, on return to the alternative mandamus, it may appear that the county or municipality can not raise the funds, after paying necessary current expenses, without special legislative authority, which has not been obtained. Here, the decision of the right to the order is on the whole merits, and no other defense, from the nature of things, can be set up to an alternative mandamus than is already raised.
The last objection is that, after the decision of the demurrer, (561) the court should have allowed the defendants to answer. This is true, if the defendant had so requested at that term and the court had found that the demurrer had been interposed in good faith. Bronson v.Insurance Co.,
In adjudging that a peremptory mandamus issue there was
No error.
Cited: Dickson v. Perkins,
(562)