dissenting. I concur with Judge Ferguson that “the Legislature had the power to grant to the defendants, the road commissioners of Waynesville township, the right and power to enter the corporate limits of the town and make the improvements specified in said act.” No town has any powers except those conferred by the charter and other statutes, and these are subject to modification and even entire repeal at the will of the Legislature. This last *240was done notably by tbe acts abolishing the cities of Memphis, Tennessee, and Fayetteville, N. C., which were held constitutional. Even counties may be abolished at the will of the Legislature. Mills v. Williams, 33 N. C., 558. This act (Acts 1903, chap. 375) provides in section 15 that “It shall be the duty of said road commissioners to begin improvements at the court-house on the four main roads in said township, to-wit: Pigeon river road, Jonathan creek road, Clyde road and Balsam Gap road.” This statute says the work must begin at the court-house on the four main roads named, and necessarily it must be where the four roads come together, as they must do, at the court-house, if, as the act says, they all begin there.
There is no complaint in this record by any one that the road commissioners are macadamizing and working that part of these roads, which, so far as they lie within the town, are called streets. This is not in the scope of this action nor contemplated by the plaintiffs. The tenor of this action is that at a certain point on the street which the plaintiffs, Howell, Martin and Thomas (who are the sole real plaintiffs), claim should be a part of the Clyde road, the defendant road commissioners have changed the road and are not macadamizing the street in front of their property as part of such road, and their sole equity to the injunction is that the failure to adopt and macadamize the street in front of their property as part of said road will impair its value. The parties on whose property the new road is laid out are not complaining. The town is a nominal co-plaintiff and is not complaining that four of its streets, nor this one, are being macadamized at the expense of the township, and notified the defendants, when-asked to join them, that the town authorities “had no authority over the matter and would assume no responsibility in the location or change of location of said road.” The position of the road commissioners is that while they *241are required to work the four roads named “beginning at the court-house,” they are expressly given authority to change the location of the road (not of the street) at any point between the court-house and Clyde, and that they find that to adopt the street as a1 part of the road at the point where the complainant’s property lies would require the public for all time to come to climb a 9 per cent, grade and an expenditure by them of $6-,000, while selecting the new route which they have chosen (to which the owners of the property over which it will run are not objecting) the grade will be reduced to’ 5 per cent, and a cost of $3,000, both of which are plainly left in their discretion by the terms of the act, and show a wise exercise of their discretion. The defendants in their answer disclaim any intention to change the street in front of the plaintiffs’ property or close it up or to exercise any control over it. They simply decline to adopt that part of the street as a part of the road. The contention of the plaintiffs is not that the defendants are exercising authority over the street in front of them, but that they are not, and have chosen another location for their road. They prefer that $6,000 should be spent where it will improve the value of their property, ignoring the fact that there will be a saving to the public of an expenditure of $3,000 and of 4 per cent, in the grade by locating the road where the commissioners, in the exercise of the discretion vested in them by the statute, have wisely seen fit to locate it instead of upon the steeper and more expensive street in front of the plaintiffs’ property. The sole object of the injunction asked is to prevent the road commissioners locating the road elsewhere, and thus to force them in spite of the discretion vested in them by the statute to macadamize and grade that part of the street in front of the plaintiffs’ property as a part of the public road to Clyde. It would seem that the Judge below properly refused them an injunction to aid them in such purpose.
*242The defendants in their answer having intimated that they might use their discretion by not macadamizing steep parts of streets in the town, if compelled to adopt them as parts of the public roads, in an affidavit filed for the plaintiffs, in reply, they assert an intention and the right to procure a mandamus in such event to compel the working of such parts of the streets by the defendants. Such is the purport and object of this litigation as set out in the record. There is no contention therein by any one that the defendants have no power to macadamize the streets in the town, so far as they are parts of the four roads named, up to the court-house.
Waynesville is not only an incorporated town but it is a county seat, and the four roads leading to the court-house are perhaps more used by citizens from the different parts of the county than by those of the town. In placing the cost of macadamizing those four roads “beginning at the courthouse” upon the larger public, the act has only required what is done in Washington, London, Paris and other cities in which the cost of certain improvements are defrayed by the larger public under officials appointed by .it, though the local public have the same -use of them. In the same way, in Raleigh, the sidewalks and parts of the streets around the Capitol Square and Executive Mansion, and indeed in front of the very building in which this Court sits, are graded and paved at the expense of the State and by its officials. Requiring the same as to the four public roads of AVaynesville has not been and could not be complained of by that town, nor even by these plaintiffs. The point presented by them is, as above stated, an entirely different question.