The petition sets forth the act of Assembly laying off and establishing the county of Alleghany, and that by a supplemental act passed at the same session (1858), five persons, naming them, were appointed commissioners to locate the county-seat of said county at or near the geographical center of the said county, as to them should seem practicable, which was to be called "Sparta," where the courthouse and other public buildings were to be erected; and they were required to purchase, or receive by donation, a tract of land to contain not more than 100 acres, and to take a conveyance therefor to the chairman of the county court. The petition sets forth further, that the commissioners appointed by the said act performed their duty by causing a survey to be made of the new county, and having thus ascertained the center, they fixed upon a point near thereto, on the land of one James H. Parks, and took a deed from the said Parks and two others, conveying to the chairman of the county court of Alleghany County, and his successors, 50 acres of land for the purposes declared in the said act of Assembly, and delivered the same to Allen Gentry, clerk of the county court of said county, in whose hands it still is.
The petition further states that by section 8 of the said act of Assembly the justices of the county court, at the first session, a majority being present, are required to appoint five commissioners, to lay off the lots of the said town, and after designating such as shall be retained for public use, shall expose to public sale the residue of the said lots, at such time and in such manner as the court may direct, taking bonds and directing the justices to apply the proceeds to the erection of the public buildings.
The petition sets forth that the justices of the county court, naming them, appointing the commissioners required, but gave them no instructions in what manner and in what time to make the sale of the lots, and at the next term of the court, a majority being present, they revoked the appointment theretofore made, and directed them not to (176) proceed in the business, and that they have failed and refused, and still refuse, to appoint any other commissioners or to give any instructions to those appointed touching the laying off and selling the lots and laying off streets of the said town, or to do any other act in the discharge of such their duty.
The petition avers that the said justices were fully aware of the proceedings of the locating commissioners in surveying the county, fixing on a site, and taking a deed for the land purchased, and of its existence in the hands of the clerk of the county court. *Page 135
The prayer is for a mandamus commanding the justices to discharge their duty in the premises or show good cause to the contrary.
The petition was verified in proper form, and the writ of alternativemandamus issued, and was served on the justices of the said county of Alleghany. At Spring Term, 1860, of Ashe Superior Court, which had jurisdiction of the case, several of the justices of the peace made return that they were willing and anxious to proceed in the discharge of their duty according to the requirements of the act of Assembly, but that they were overruled and prevented by the other justices of the county, who constituted a majority. The other justices, being the majority, without having called a session, professed to make return through A. B. McMillan, and alleged for their return that the commissioners appointed to fix upon a site for the county town, in performing that duty did not consult their own judgments, but left it to a vote of the people of the new county, who determined on the place now insisted on, and, secondly, that the locating commissioners had never notified the justices of their action in the premises.
The court decided that the return was insufficient, and ordered a peremptory mandamus to issue, from which the defendants appealed. The relators having heretofore obtained a writ of (177) alternative mandamus against the defendants from the judge of the Superior Court of Law for the county of Ashe, to which the defendants made their return, in which they set forth the reasons why they had not performed the duties required of them, and upon that return the court having made an order for a peremptory mandamus, the defendants took an appeal therefrom to the Superior Court.
The proceedings are founded upon sections 7 and 8, chapter 4, Laws 1858, entitled "An act supplemental to an act to lay off and establish a county by the name of Alleghany, passed by the present session of the General Assembly." Section 7 required of certain persons therein named as commissioners to select and locate a site for the county town at or as near the geographical center of the country as practicable, and for that purpose to purchase, or obtain by donation, a tract of land of not more than 100 acres, "to be conveyed to the chairman of the county court and his successors in office, for the use of the said county." This duty, the relators alleged in their petition, had been performed, and the object of the mandamus prayed for was to compel the defendants to appoint five commissioners "to lay off the lots of the said town" and to perform the other duties required of them by section 8 of the act. *Page 136
The only facts set out in the return of the defendants upon which their counsel relied in the argument here in opposition to the order for the peremptory mandamus are, first, that the commissioners who were appointed to locate and select a town for a county-seat did not, in performing that duty, act upon their own judgments, but upon the result of a vote of a majority of those citizens of the new county, who voted upon the subject; and, second, that the said commissioners had never notified the defendants, as justices, either in writing or verbally, that they had selected a site for the county town, and purchased, or obtained by donation, the land upon which it was to be located.
We are decidedly of opinion that neither of these objections can avail the defendants. The justices of the county court have, (178) clearly, no right to go behind the action of the locating commissioners and inquire by what motives they were prompted in the performance of their duty. The commissioners did precisely what they were authorized and required by law to do, and it would be singular, indeed, if the validity of their act depended upon the motives, good or bad, by which they were actuated in doing it.
With regard to the second objection, it is admitted by the defendants that the commissioners had taken a deed, by which the grantor conveyed 50 acres of land to the chairman of the county court, for the use of the county, in which deed, however, one acre was excepted. It is admitted that this deed was deposited in the office of the clerk of the county court, and the defendants knew that fact. That act of the locating commissioners, so far as we can see, was all that the law contemplated in order to make it the duty of the defendants to appoint commissioners for performing the duties enjoined by section 8 of the act. We cannot discover that the locating commissioners were required to give any kind of notice to the defendants of what they had done, it being supposed that when the deed for the land which they were required to procure was filed in the office of the clerk of their court, they would know it, and would thereupon immediately proceed to appoint commissioners for laying out the lots and streets of the town, selling lots, etc., so that the public buildings of the county might be erected as soon as practicable.
We have considered the case as if all the proceedings were proper; but in truth, it was irregular that two returns should have been made, one by a majority and the other by a minority of the justices of the county. As we said in McCoy v. Harnett, 49 N.C. 180: "A mandamus to `the justices of a county' issues against them as a body, and not as separate individuals; so they must make a return as a body. To this end it is proper for the justices to convene, and, a majority being present, as for the transaction of any other county business, to agree *Page 137 upon the facts that are to be set out for their return. In this, as in other cases, a majority of those present will govern. They (179) will then appoint some one of their body who, as their agent, is to make the proper affidavit and do all other acts and things which may become necessary in the course of their proceeding." But, notwithstanding the irregularity to which we have alluded, as the parties and their counsel have treated the return of a majority of the justices as "the return of the justices of the county," we have regarded it as such, and, so regarding it, we find nothing in it to prevent the relators from having an order for a peremptory mandamus against them. The judgment of the Superior Court to that effect must, therefore, be
PER CURIAM. Affirmed.