#### W. B. FISHER et als. v. COMMISSIONERS OF CHEROKEE et als.

(Filed 30 May, 1914.)

Municipal Corporations — Bond—Subscription ' to Railroad Stock— Commissioners — Discretionary Power — Mandamus—Good Faith.

An act authorizing municipalities and townships along the line of a prospective railroad tc¡ vote bonds therefor and subscribe to its capital stock was subsequently amended so as to appoint representatives for the various communities for the purpose of making subscriptions He novo to the capital stock of the corporation, of issuing bonds, etc., “as conditions may require *239and as they may determine, after the conditions and requirements provided in the act are complied with.” Held, the establishment of the bonds, etc., is not a ministerial but a discretionary duty, to compel which a mandamus will not lie, except for abuse of this discretion; and there being evidence that the commissioners have acted in good faith, but have exercised their discretion to the extent of subscribing for a certain amount of the railroad stock, the case is remanded, with direction that the Superior Court find the facts more fully upon the affidavits and evidence presented.

Appeal from judgment rendered by Garter, J., 11 April, 1914; from Cherokee.

This is a petition for a writ of mandamus, beard upon tbe complaint, answers, and affidavits, by bis Honor, Judge Garter. His Honor made an order therein, wbicb is set out in tbe record, from wbicb tbe defendant appealed.

Bryson & Blade and Zebulon Weaver for ’plaintiff.

M. W. Bell and Dillard & Hill for defendant.

Pee* Oueiam.

Chapter 254, Private Laws 1913, chartered tbe Hiawassee Yalley Railway Company, and tbe municipalities and townships through wbicb tbe road is to run were authorized to vote bonds and subscribe to tbe capital stock.

For some reason tbe General Assembly, at its Special Session of 1913, enacted chapter 123, Public-Local Laws of that session, wbicb made a very considerable change in the legislation covering this enterprise.

By virtue of that act tbe defendants W. P. Walker, H. N. Wells, and N. W. Abernethy were appointed representatives of Valley Town Township for tbe purpose of making subscriptions de novo to tbe capital stock of tbe corporation, and for tbe purpose of issuing bonds and selling tbe same from time to time “as conditions may require and as they may determine, after tbe conditions and requirements provided in tbe act are complied with.”

Tbe object of this petition is to compel these defendants, Walker, Wells, and Abernethy, to establish bonds of tbe said township in tbe sum of $75,000 to pay for stock subscription of like amount to tbe said railroad.

*240We have no hesitation in concluding that the question of subscribing stock and the amounts to be subscribed is left by the act of the special session to the sound discretion of the three commissioners, and the court has no power, therefore, to compel them to subscribe unless there is some allegation and proof of an arbitrary or fraudulent refusal to exercise such discretion.

While a mandamus will lie to compel public officers to discharge a mere ministerial duty, it will not lie to compel them to perform an act which is left to their sound judgment and discretion. County Board v. State Board, 106 N. C., 81; Russell v. Ayer, 120 N. C., 180.

But it is contended that these three commissioners have exercised their discretion to the extent of subscribing for $10,000 of the railroad stock, and that they should be compelled to issue and sell $10,000 in bonds to make good such subscription.

This seems to be the view of the court below in making the order referred to. It is contended, in behalf of the three commissioners, that the entire matter is one within their sound discretion, and that a mandamus will not lie even to compel the issue of the $10,000 of bonds.

In their answer these three defendants have set up a number of facts by way of defense which we think it is necessary should be passed upon. Some affidavits are presented in the record in respect to the location of the road, the possibility of its construction, and other matters, going to show good faith on the part of the three defendants who have been intrusted with representing the township in this matter.

These defendants aver that they are not acting arbitrarily, but are exercising their discretion in a proper and legitimate manner under the -act of the said special session. .

We, therefore, are of opinion that the case should be remanded to the Superior Court of Cherokee County, with directions to find the facts more fully upon the affidavits and evidence presented.

The plaintiffs and the defendants will each be taxed one-half of the costs of this Court.

Remanded.