#### K. C. MORRIS et al. v. THE BOARD OF COMMISSIONERS OF HENDERSON COUNTY et al.

(Filed 20 December, 1922.)

Appeal and Error — Injunction—Actions—Suits—Causes of Action Ceasing — Dismissal—Costs—Highways—Roads and Highways.

Where it appears, on appeal from an order of the Superior Court judge enjoining a board of county commissioners from wasting and misapplying certain proceeds from the sale of bonds issued for highway purposes, that on account of the change in the personnel of the board the proceedings have become unnecessary, the action will be dismissed. On this appeal the cost is taxed equally between the plaintiffs and defendants. Beinble, the judge was without authority to direct the application of the funds, but that good cause was shown for continuing the injunction to the final hearing.

*550Appeal by defendants from a judgment continuing an injunction to the hearing, rendered by Ferguson, J., at chambers in "Waynesville, 25 September, 1922.

Pless, Winborne & Pless for plaintiff.

Shipman & Arledge and Carter, Shuford & Hartshorn for defendant.

Adams, J.

The plaintiffs are citizens and taxpayers of Henderson County, and the defendants are the board of county commissioners, "W. P. Bane, chairman, G. B. Hill, and John T. Staton, members of said board, the board of road trustees, "W. P. Bane, chairman, E. A. Bly, and W. W. "Wilfong, members of said board, and the Citizens National Bank, treasurer of Henderson County. Prior to April, 1921, the county commissioners and the road trustees decided to reconstruct and surface the road extending from the Buncombe County line to the Greenville County line, and in May bonds amounting to $590,000 were sold for the purpose of building and reconstructing the public roads and bridges of the county. The plaintiffs alleged that the commissioners and trustees announced that any part of the fund remaining after accomplishing these purposes was to be spent by the road trustees upon other highways, and that in consequence of this announcement the plaintiffs and other citizens executed notes in the aggregate sum of $23,000 to make up the deficiency between the price paid for the bonds by the two banks and the price the bonds could be resold for, with the understanding that the proceeds "derived from the sale of the bonds should be used first for constructing and hard-surfacing the road from the Buncombe line to Hendersonville, and thence to the Greenville line. The object of the action is to restrain the defendants from using the fund for any purpose other than the construction of this State highway until completed. The plaintiffs alleged incompetency, waste, and the wrongful use of a part of the fund, and sought by means of an injunction to prevent the alleged misapplication of the balance. The defendants answered, denying the charges made against the defendants, and alleged that they had in all respects lived up to their agreement, and had been defeated in their purpose by the refusal of cooperation on the part of the State Highway Commission. On 25 September, Judge Ferguson continued to the hearing the temporary restraining order theretofore issued, and directed that $60,000 of the fund be turned over by the defendants to the State Highway Commission, to be used in the improvement of the road between Hendersonville and Tuxedo, etc., and that $200,000 be held by the county authorities, to be used only in the construction of a hard-surface road between Bat Cove and Henderson-ville, and enjoined the use of these funds for any other purpose.

*551In tbeir brief tbe attorneys for tbe plaintiffs say that tbe object of tbe suit was to restrain tbe defendants from wasting tbe fund referred to, and tbat as tbe official conduct of tbe defendants was directed by one of tbeir number, wbo is now out of office, tbey will not resist a modifica- ■ tion of tbe order from wbicb tbe appeal was taken.

While we tbink tbat bis Honor was without authority to direct tbe application of tbe fund, and tbat such direction' should have been omitted from tbe order, still there was good cause for continuing tbe injunction to tbe final bearing. But since it is admitted tbat the principal defendant is out of office, and tbat further prosecution of tbe suit would serve no useful purpose, tbe action is dismissed. Tbe cost will be equally divided between tbe plaintiffs and tbe defendants. '

Action dismissed.