#### STATE ex rel. WILLIAM HILL AND H. W. WOLFF vs. ELISHA BONNER, JACOB L. FULK, AND OTHERS.

Where by an Act of Assembly, certain persons were appointed commissioners “ to select and determine upon a site for a permanent seat of justice for S. County, who shall locate the same as near the centre of said County as a suitable location can be obtained, taking into consideration both the extent of territory and population ;y> and the commissioners had made a selection. Upon an application for a prohibition and mandamus, on the general ground that the site selected was not in the centre of the County:— Held, That though, had the commissioners neglected to discharge the duty at all, the Court might by mandamus have enforced its performance, yet here, the commissioners having acted and exercised their judgment in the selection, and the trust evidently requiring, and the Act conferring a discretion, the Court cannot interpose by mandamus to control the exercise of that discretion.

Held also, That the relators, at whose instance this application was made, having no particular or private interest in the controversy, which was entirely of a public nature, were not liable on dismission of the application, to pay costs to the defendants.

(The case of the Stater. King, 2 Ire., 22, cited and approved.)

This was an information, filed by the Solicitor of the Sixth Judicial Circuit against the defendants, as commissioners appointed under an Act of the General Assembly passed at the session of 1850-’51, to select a site for a permanent seat of justice for the County of Surry, to show cause wherefore writs of Prohibition and Mandamus should not issue against them, prohibiting their further proceedings in the sale of town lots, at a place selected by them, called DobsoN, and commanding them to select a site, agreeably to the provisions of said Act, near the centre of said County, having due regard to territory and population.

The defendants admitted service of the rule obtained, and filed their answer to said information. Affidavits were taken by both sides, and the cause tried before Bailey, Judge, at Spring Term, 1853, of Surry Superior Court of Law. Upon hearing the affidavits and the arguments of counsel, his Honor was of opinion with the defendants, and accordingly discharged the rule and dismissed the information ; from which judgment the plaintiffs prayed and obtained an appeal to the Supreme Court.

Winston and Miller, for the plaintiffs.

No counsel for the defendants in this Court.

*258Nash, C. J.

At the session of the General Assembly in the year 1851, an Act was passed to divide the County of Surry, “provided a majority of free white men, entitled to vote for members of the House of Commons, shall vote for the same.” By the same Act the defendants were appointed commissioners “ to select and determine upon a site for a permanent seat of justice for Surry County, who shall locate the same as near the cen-tre of said County as a suitable location can be obtained, taking' into consideration both the extent of territory and population.” The commissioners, in their return, state that they have performed their duty with a strict and conscientious regard to the requirements of the act. These commissioners are the servants of the General Assembly to perform the acts required of them ; in their ability and fidelity the Legislature confided; and to their discretion the business was entrusted. With the exercise of that discretion we cannot interfere, as they in their return state their compliance substantially with the act. If the Court were to issue its mandamus, what would it command ? That the commissioners should proceed to select a site for the County town, observing the requirements of the Act. We could not tell them whether the proper site is to the east or west of the centre line designated in the petition ; or whether, if on the one side or the other, it would be the proper place, regard being had to the population of the County. To do so, would be assuming an authority not given to us, but to the defendants, tire commissioners. We could make no other fiat than the one already set forth. What other return then, could the defendants make than the one they have made, if it be the truth? Another mándennos might be issued, to which the same return might be made; and in this way the matter might be bandied about from term to term, to the great injury and disturbance of the citizens of the County. If the defendants had neglected or refused to execute the power entrusted to them, we certainly might call upon them to show cause why they had .been so negligent; and, upon an insufficient return, might have issued a peremptory mandmnus. Here, all we could do would be to command them to select the site for the permanent seat of justice for the County, according to the law: which, under their oaths, they say they have done.

*259It has been suggested, that the proceedings might be sustained as an information in the nature of a quo warranto. To this the answer is, that the information filed charges, that the Statute, under which the defendants are required to act, is unconstitutional. If so, the power conferred upon them is void. It was said that the Statute was void, because it submitted to the people of the County of Surry, to say whether it should become a law — thereby enabling a very small portion of the citizens of the State to establish a public law, binding, if at all, upon the whole State ; and because it alters-the fundamental principles of the government, by converting it from a representative republican government, as established by the constitution, into a pure democracy— calling.on the people to do that which the people themselves had said by the constitution, which was their act, they would not do. At a subsequent session of the Legislature, an Act was passed ratifying and confirming what had been done under the original act.* It is not now therefore necessary for us to pronounce any opinion upon the constitutional question. But while we decline expressing such opinion, as being unnecessary to the decision of the case, we have no hesitation in saying, that it is only whilst the several departments of the government confine their action within the limits assigned them in the constitution, and fearlessly and firmly exercise the power there given them on all fit occasions, that our pure and noble constitution can secure to us the blessings of peace, harmony and prosperity. The officers of each department are sworn to support the constitution of the State and are, therefore, on all proper occasions^ as much bound to execute the power by it conferred upon them, as they are, not to assume authority by it not conferred.

His Honor below dismissed the petition at the costs of the re-lators. We concur with him in his judgment, dismissing the proceedings 5 but not as to the costs. The judgment below, dismissing the proceeding, is affirmed, but each party is to pay his own costs. This is clearly settled by the case of State v. King, 1 Ire. 22 — the matter in dispute being of a public nature, and the relat-*260ors having no particular or private interest in the controversy, apart from the rest of the citizens of Surry County.

Per Curiam. Judgment affirmed, but without costs.

*

See Acts of 1852, eh. 22, page of pamphlet Laws 71.