#### J. F. HARGRAVE et als. v. BOARD OF COMMISSIONERS OF DAVIDSON COUNTY.

(Filed 14 April, 1915.)

1. Counties — Roads and Highways — Necessary Expenses — Constitutional Law — Taxation—Bond Issues.

The construction and maintenance of public roads are a necessary public expense, for which the General Assembly may provide, and create a board therefor distinct from the county commissioners, and fix and authorize a levy of tax therefor, without causing the proposition to be submitted to the vote of the people.

2. Sanie — Statutes—Power of Courts.

The question as to whether a legislative act, providing for an issuance of bonds, passed in accordance with Art. II, sec. 14, of the State Constitution, sufficiently safeguards the rights of the citizen as to the assessment of damages for land to be taken by the road commission in improving the roads of a county will not be considered in an action brought by the taxpayer to restrain the commissioners from exercising the authority given them, and can only be raised by the landowner when the occasion occurs.

3. Same — Injunction.

The courts cannot enjoin road commissioners in the performance of their duties in the maintenance, construction, and management of the public roads of the county, under legislative authority, imposed by a statute passed in accordance with Art. VII, sec. 7, of the State Constitution ; and the objections to the statute in question that the board is a self-perpetuating body because the members are to fill vacancies, etc., without limitation as to the duration, or responsibility to the people for their acts, etc., or that the members are not subject to removal except upon indictment for misfeasance, and then only for the willful failure or refusal to perform a duty, should be addressed to the lawmaking power, and not to the courts.

*6274. Courts, Power of — Official Acts — Mandamus—Injunction.

The power of the courts over officials acting under authority of a valid statute cannot extend to enforce disobedience to the act. ’ It is only to enforce their faithful performance of their duties that the courts can supervise them by mandamus or injunction.

5. Supreme Court — Decisions—Estoppel—Statutes.

The Supreme Court having by numerous decisions held that an act of the Legislature authorizing a bond issue for public roads is valid if conforming to Art. II, sec. 14, of the State Constitution, without submitting the proposition to a vote of the people, and in construing acts involving proportionately to population and property value no greater amount of bonds than are here in controversy, is estopped to apply a different rule to the facts on this appeal.

Brown, J., dissenting.

Appeal by plaintiffs from tbe refusal by Lyon, J., of an injunction to tbe bearing at chambers, in Greensboro, 20 March, 1915; from DavidsoN.

Manning '■& Kitchin, S. E. Williams, W. 0. Burgin, and McCrary & McCrary for plaintiffs.

E. E. Paper, Phillips & Bower, and Walser & Walser for defendant.

OlaRK, O. J.

Tbe plaintiffs, residents and taxpayers of Davidson County, brought this action to test tbe validity of an act ratified 27 February, 1915, creating tbe board of road commissioners of Davidson County, and authorizing tbe issue of $300,000 of bonds to construct and maintain tbe roads of said county. Tbe act confers on said board sole control over tbe roads of said county and other powers set out in said act. Tbe complaint does not allege that tbe act was not regularly passed nor that tbe requirements of tbe Constitution, Art. II, sec. 14, were not in all respects complied with. Indeed, tbe regularity of tbe passage of tbe act is shown by tbe certificate of tbe Secretary of State to copies of tbe act and tbe entries on tbe Journals of tbe General Assembly relating to tbe enactment thereof.

Tbe questions presented in this case are almost identical with those' considered in Comrs. v. Comrs., 165 N. C., 632, in which a similar act was upheld. In that case, and also in Trustees v. Webb, 155 N. C., 379; Pritchard v. Comrs., 159 N. C., 636, affirmed on rehearing, 160 N. C., 476; Tate v. Comrs., 122 N. C., 812; Herring v. Dixon, ib., 420, and in other cases, this Court has held that tbe construction and maintenance of public roads are a necessary public expense, and that tbe General Assembly may provide for construction and working tbe same and may create a board to do this, distinct from tbe county commissioners, and fix and authorize the levy of taxes for that purpose, as in this act, without a vote of tbe people. "We know of no reason to question tbe correctness of those decisions.

*628It is objected by tbe plaintiffs:

(1) Tbat tbe act tabes tbe entire management of tbe public roads from tbe county commissioners.

(2) Tbat it abolishes tbe existing township road boards and turns tbe property of such boards over to a county board created by this act.

(3) That it provides for tbe election of successors, at expiration of term of office of tbe board named in tbe act, by tbe surviving members.

(4) Tbat there is no limit of time for continuance of tbe act.

(5) Tbat nobody is given authority to supervise tbe acts of tbe board.

(6) Tbat tbe provisions of tbe act for condemning land are not sufficient, and are illegal.

All tbe propositions thus relied upon have been held insufficient to invalidate tbe action of tbe General Assembly in tbe cases above cited.

Tbe plaintiffs, in their brief, concede tbat tbe working and construction of public roads are necessaiy expenses, and tbat tbe creation of debt by tbe issuance of bonds for tbat purpose is not required to be submitted to a vote of tbe people under tbe provisions of tbe Constitution, Art. VII, see. I, citing Vaughan v. Comrs., 117 N. C., 434; Comrs. v. Comrs., 165 N. C., 632, and cases therein cited, and tbe still later case, Highway Commission v. Malone, 166 N. C., 1.

Tbe plaintiffs, however, contend tbat tbe act now before us does not sufficiently safeguard tbe rights of tbe citizen as to tbe assessment of damages for land taken by tbe road commission in improving tbe roads. Tbat question cannot be raised in this case, but objection should be made by .the party in interest, tbe landowner, when tbe occasion occurs, and should tbe objection be sustained it would in no wise affect tbe validity of tbe statute as a whole, nor would it justify this injunction sought against tbe issuance of tbe bonds or to restrain tbe road commission from discharging tbe duties imposed on them by tbe act of tbe General Assembly.

Tbe plaintiffs further contend tbat tbe statute, by authorizing the board to fill vacancies in its own body from time to time, makes it a self-perpetuating body, because though two of them are elected for two years, two for four years, and two for six years, tbe terms of the expiring members are filled by their associates. They further object tbat tbe existence of the hoard is unlimited in duration and tbat it is not made responsible to tbe people for its acts, nor to any constitutional authority; tbat tbe act contains no provisions for tbe removal of any member of tbe board except upon indictment for a misfeasance, and then only where tbe neglect or refusal to perform a duty is willful or corrupt; and, in short, tbat tbe Legislature has given tbe board too much power.

All these matters are within tbe control of tbe legislative department of tbe Government, and it is not in the power of this Court to correct *629them, nor to review or criticise the action of the General Assembly within the scope of its powers. The act is within the constitutional power of the Legislature, and if there are any defects found therein of the nature complained of, they can be corrected by the General Assembly, should it so wish, at its next session.

After full and careful review of the reasons presented by the able counsel for the plaintiffs, and with due regard to the amount involved and the importance of the act to the people of Davidson County, we do not find that we have any power to issue any writ to interfere with the execution of the act, which has been duly passed and within the constitutional authority and power of the General Assembly.

In Comrs. v. Comrs., 165 N. C., 634, we said, quoting from Pearson, G. J., in Broadnax v. Groom, 64 N. C., 250: “The Court has no power, and is not capable, if it had the power, of controlling the exercise of power conferred by the Constitution upon the legislative department of the Government, or upon the county authorities.” In the same case, Comrs. v. Comrs., 165 N. C., pp. 635, 636, this Court further said: “This is not a matter over which this coordinate department of the Government has any control. If the result is bad, the remedy is to be found in the power of public opinion, either in controlling the conduct of such members or in electing successors who will cause the objectionable legislation to be repealed or modified. The courts do not have supervisory power over the General Assembly, or over the county officials when acting within the authority lawfully conferred upon them by the Legislature. If there were allegation and proof that the defendants, or any other public officials, were acting dishonestly, or so extravagantly or so recklessly as to amount to an abuse of the authority conferred upon them, the courts might, by injunction in such case, restrain the alleged illegal acts until a jury could pass upon the issues of fact; but the courts cannot interfere with such powers as are conferred upon the defendants by the statute in this case, which, as we have held, were within the power of the General Assembly.” The courts can compel officials to comply with a lawful statute. They cannot direct them to disobey it. The courts can supervise by mandamus or injunction the action of officials only to insure their faithful execution of the duties imposed upon them by' the statute.

The case last cited, Comrs. v. Comrs., 165 N. C., 632, was a decision upon a statute very similar in purpose and purport to this, applicable to the county of Yancey, and further legislation in regard thereto, as desired by the people of that county, has been enacted by the General Assembly since held. The recourse of the plaintiffs herein must be had to the same body, and not to the courts.

This Court can review the conduct of the judges below us, even in matters within their discretion, if there is clear abuse of such discretion; *630but the Constitution gives no such powers to the five lawyers, who compose this Court, over the conduct of the General Assembly when acting within the constitutional scope of their authority. This Court has repeatedly held, in cases above cited, that the construction and maintenance of public roads, being a necessary expense, the General Assembly has authority to authorize the creation of debt for that purpose without a vote of the people. It may be urged that the General Assembly ought not to be intrusted with such authority; but that is a matter for the people themselves in enacting the State Constitution. It may be said that though the General Assembly has such power, it ought not to exercise it. But that is a matter for them, and not for this Court. While the General Assembly enacted this statute, it is probably true, as contended by the plaintiffs, that the act would not have been passed if opposed by the Member and Senator from the county of Davidson; but that is a matter for the people of that county, and should have been considered by them in selecting their representatives in the General Assembly.

But even if we could review and reverse the action of the General Assembly, should we think they may have acted indiscreetly in passing this act, this Court would be estopped by our previous unanimous decisions to say that there was abuse of discretion on the part of the General Assembly in.authorizing Davidson County to issue $300,000 for road purposes without a vote of the people. In Comrs v. Comrs., 165 N. C., 632, we held a similar act as to Yancey County valid when the population was 12,072 and the taxable property $1,753,036, and the amount of bonds for road purposes, held valid by a unanimous opinion of this Court, was $125,000.

In Pritchard v. Comrs., 159 N. C., 636, we held valid, by a unanimous Court, an issue of $250,000 by Orange County, where the population was 15,066 and the taxable property was $5,167,820; and that case was reaffirmed on rehearing, 160 N. C., 476.

In the present case the issue authorized for Davidson County is $300,-000, but the population is nearly double that of Orange, towit, 29,404, and the taxable property is $9,378,008.

If this Court has power to pass upon the action of the Legislature, when, as wé have held, such action is within the constitutional power of the General Assembly, merely because we may think that such action is improvident, we would be estopped by the above and other cases where the amount of bonds authorized for road purposes is proportionately much greater in proportion to population and taxable value than in this case. Besides, if we possessed such power, this State would practically have a commission form of government. The Constitution Would have to clearly confer such unusual authority, which it has not done, either expressly or by any implication.

*631The people of North Carolina have long since declared that they were competent to govern themselves, and they have proved it. When their representatives in the General Assembly procure an act within its powers, which is not agreeable to their constituents, the members of the General Assembly are responsible to the sovereign, the people themselves, and not to this Court, which is simply a coordinate department of the Government, and not authorized to go beyond the powers conferred on us by the Constitution.

The judgment of the court below is

Affirmed.

BeowN, J.,

dissenting: Under the facts set out in the complaint in this case, which are practically admitted to be true, I cannot agree that a bonded debt of $300,000 shall be fastened upon the taxpayers of the county of Davidson, not only without their consent, but against it.

I admit that the decision of the majority of this Court is strictly in accordance with the principles laid down in the Yancey County case, 165 N. C., 632, in which an act somewhat similar to this was sustained. I admit that there are other cases cited in the opinion of the Court in which this Court has held that the public roads of a county are a necessary public expense, and that the General Assembly may provide the method for their upkeep and maintenance.

I have come to the conclusion that this Court has gone entirely too far in defining what are the necessary expenses of a county within the meaning of Art. VII, sec. 7, of the Constitution. At the time when the Constitution of 1868 was adopted, in which this section first occurs, we had a system of public roads throughout the State, maintained without special taxation, and although keeping them up by taxation may result in much better roads, yet I have no idea that the thought ever occurred to any member of the Convention of 1868, or to any of the voters of the State, that under that section it would ever be possible to fasten a debt of $300,000 upon a county for the purpose of constructing and keeping up its public roads, without the consent of its citizens.

I have come to the conclusion that this Court should reverse itself upon that proposition. No one can tell to what extent this doctrine may be carried in the future. The. proposition here is to issue $300,000 in bonds. What will the limit be ? Suppose, instead of $300,000, the author of the bill had provided for the issue of a million dollars in bonds: this Court, according to the principles announced, would be compelled to sustain it, and the groaning taxpayers of Davidson County would have no remedy. This is inconsistent with all theories of local self-government and is antagonistic to the best interest of the State.

The plaintiffs in this case show that this proposition to issue $300,000 in bonds was voted upon by the people of Davidson County not two *632years ago, under tbe act of 1913. They voted it down by a large majority. The act of 1915 was passed, without the knowledge of the people of Davidson County, at the instance of their representative. They had no opportunity to oppose it, and if they had, so-called “senatorial courtesy” would have required the passage of the act.

According to the allegations contained in the pleadings in-this case, the people in Davidson County are not opposed to good roads, nor are they opposed to taxing themselves for this purpose. On the contrary, all except four of the seventeen townships in the county are levying and collecting taxes for special road purposes. The money was carefully expended by trustees responsible to the people, and while they were willing to pay this annual tribute for the purpose of keeping up their roads, they were not willing to mortgage the future of their county and burden it in the years to come with such immense debt.