#### BOARD OF ROAD COMMISSIONERS OF TRANSYLVANIA COUNTY et al. v. BOARD OF COMMISSIONERS OF TRANSYLVANIA COUNTY et al.

(Filed 21 December, 1927.)

Appeal and Error — Mandamus—Record—Findings of Fact — Remand.

Sufficient facts must appear of record in appeal in proceedings for mandamus.

Appeal by defendant from Schencle, J'., at Chambers, 3 September, 1927.

Remanded.,

Action for writ of mandamus, to compel defendant board to levy a tax sufficient to raise the amount of the budget filed with defendant board by plaintiff, for the construction and maintenance of public roads in Transylvania County during the ensuing year.

From judgment in accordance with the prayer of the plaintiff, defendant appealed to the Supreme Court.

*819 W. E. Breece and Bless, Winborne, Bless & Broctor for plaintiff.

Ralph Fisher for defendant. •

PeR CueiaM.

Tbis action arises ont of a controversy between plaintiff and defendant as to tbe amount of money required for tbe construction and maintenance of tbe public roads of Transylvania County, for tbe year 1927-28. Botb plaintiff and defendant filed affidavits to be considered on tbe bearing before tbe judge, sustaining tbeir respective contentions as to tbe facts involved in tbe controversy. Tbe judge, however, bas found no facts upon wbicb to base bis judgment. Serious questions of law are discussed in tbe briefs filed in tbis Court, some of wbicb, at least, do not seem to be raised by tbe record. We cannot proceed to “a consideration of these questions of law, in tbe absence of a finding by tbe judge of tbe facts involved in tbe controversy. Britt v. Board of Canvassers, 172 N. C., 797. There was no error in tbe denial by tbe judge of defendant’s demand for a trial by jury, but tbis being an action for a writ of mandamus tbe judge should find tbe facts and embody bis findings in bis judgment.

Tbe action is, therefore, remanded to tbe Superior Court of Transylvania County, to tbe end that tbe facts involved in tbe controversy may be found, and made to appear properly in tbe record. It is so ordered.

Eemanded.