#### State upon the relation of WILLIAM LANDER, Solicitor, v. A. B. McMILLAN et al, Justices of Alleghany.

Where an act of Assembly, establishing a new county, appointed commissioners, by name, to ascertain a site, and purchase a tract of land for a county town, and required the justices of the county to appoint commissioners to lay off lots and sell them, it was held not to be a sufficient return to an alternative mandamus to compel the justices to the performance of their duties, to allege that the locating commissioners, in discharging their duties, were prompted by improper motives.

Where an act of Assembly, establishing a new county, made it the duty of certain commissioners, to purchase a tract of land, and having taken a deed for it, to file such deed in the office of the County Court, and then for the justices of the county to do certain acts prescribed, it was held that the justices were not entitled to any other notice that the commissioners had acted, than the filing of such deed; especially as no notice is required, by the act, to 'be given them.

The proper way for the justices of a county to make return to a mandamus, is for them to convene, and a majority being present, to fix upon the facts they mean to rely on by way of defense, and appoint some one of their body to make affidavit, and to do all other things required by the proceeding.

(McKay v. Justices of Harnett, i Jones’ Rep. 180, cited and approved.)

*175Motion for a peremptory mandamus, heard before Osborne, J., at the Spring Term, 1860, of Ashe Superior Court.

The petition sets forth the act of Assembly, laying off and establishing the county of Alleghany, and that ■ by a supplemental act passed at the same session, (1858) five persons, naming them, were appointed commissioners to locate the county seat of said county, at or as near the geographical centre of the said county, as to them should seem practicable, which was to be called “ Sparta where the court-house and other public buildings, were to be erected; and they were required to purchase, or receive by donation, a tract of land, to contain not more than one hundred acres, and to take a conveyance therefor, to the chairman of the county court. The petition sets forth further, that the commissioners appointed by the said act, performed their duty by causing a survey to .be made of the new county, and having ■ thus ascertained the centre, they fixed upon a point near thereto, on the land of one James H. Barks, and took a deed from the said Barks, and two others, conveying to the chairman of the c ounty court of Alleghany county, and his successors, fifty acres of land, for the purposes declared in the said act of Assembly, and delivered the same to Allen Gentry, clerk of the county court of said county, in whose hands it still is.

The petition further states, that, by the 8th section of the said act of Assembly, the justices of the county court, at the first session, a majority being present, are required to appoint five commissioners, to lay off the lots of the said town, and after designating such as shall be retained for public use, shall expose to public sale the residue of the said lots, at such time and in such manner as the Court may direct, taking bonds and directing the justices to apply the proceeds to the erection of the public buildings.

The petition sets forth, that the justices of the County Court, naming them, appointed the commissioners required, but gave them no instructions in what manner, and at what time to make the sale of the lots, and at the next term of the Court, ajmajority being present, they revoked the appointment there*176 to fore made, and directed them not to p2’oceed in the business, and that they have failed and refused, and;still fail ancf1 refuse to appoint any other commissioners, or to- give any instructions to those appointed, touching the laying off and' selling the lots anddaying off: streets of the said town,,or to-do any other act in the discharge of such their dirty.

The petition avers- that the said justices were -fully aware of the proceedings- of the locating commissioners in surveying the.-county — fixing.on a sit©-and taking a deed for the land purchased, and of its-.existence in, the hands of. the clerk; of the county court.

The prayer is for-a mandamus, commanding-the-justices to discharge‘thei-r duty, in,the premises, or show good cause.-to the. contrary.

The petition • was verified in proper form, and-the writ of alternative mandamus issued, and was served on the justices. of the said county of Alleghany. At the-Spring Term, .1860, of Ashe Superior Court, which had jurisdiction of the case, several of the justices of tlie peace made- return, that they were willing and anxious to proceed in the- discharge of thei-r duty, according.to-the requirements of the act of Assembly, but that they were over-ruled .and ¡rrevented by the other justices of the county7,- who constituted a majority. The other justices, being the majority,, without having called a session, professed to make return- through A...B. McMillan, and alleged for their return, that the commissioners appointed to fix upon a site for the-county town, in performing that duty, did not consult their own judgments, but left it to a vote of the people of the new county, who determined on the place now insisted on, and, secondly, that the locating commissioners had never notified the justices of their action in the premises.

The Court decided that the return was insufficient, and ordered a peremptory mandamus to issue, from which the defendants appealed.

Grumpier, for the plaintiffs.

Hoyden, for the defendants.

*177Battle, J.

The relators having heretofore obtained a writ of alternative mandamus against the defendants from the Judge of the Superior Court of Law, for the county of Ashe, to which the defendants made their return, in which they set forth the reasons why they had not performed the duties required of them, and upon that return, the Court having made an order for a peremptory mandamus, the defendants took an appeal therefrom to the Supreme Court.

The proceedings are founded upon the Tth and 8th sections of the act of 1858, chapter 4, entitled “ An act supplemental to an act to lay oif and establish a county by the name of Alleghany, passed by the present session of the General Assembly.” The Tth section required of certain persons, therein named as commissioners, to select and locate a site for the county town at, or as near the geographical centre of the county as practicable, and for that purpose, to purchase, or obtain by donation, a tract of land of not more than one hundred acres, “ to be conveyed to the chairman of the county court and his successors in office, for the use of the said county.” This duty, the relators alleged in their petition, had been performed, and the object of the mandamus prayed for, was to compel the defendants to appoint five commissioners “ to lay off the lots of the said town,” and to perform the other duties required of them by the 8th section of the act.

The only facts set out in the return of the defendants, upon which their counsel relied in the argument here, in opposition to the order for the peremptory mandamus, are, first, that the commissioners, who were appointed to locate and select a town for the county seat, did not, in performing that duty, act upon their own judgments, but upon the result of a vote of a majority of those citizens of the new county, who voted upon the subject; and, secondly, that the said commissioners had never notified the defendants, as justices, either in writing or verbally, that they had selected a site for the county town, and purchased, or obtained by donation, the land upon which it was to be located.

We are decidedly of opinion, that neither of these objec*178tions can avail the defendants. The justices of the county-court have, clearly, no right to go behind the action of the locating commissioners, and enquire by what motives they were prompted in the performance of their duty. The commisj sioners did precisely what they were authorised and required bylaw to do, and it would be singular, indeed, if the validity of their act depended upon the motives, good or bad, by which they were actuated in doing it.

With regard to the second objection, it is admitted by the defendants that the commissioners had taken a deed, by which the grantor conveyed fifty acres of land to the chairman of the county court, for the use of the county, in which deed, however, one acre was excepted. It is admitted that this deed was deposited in the office of the clerk of the county court, and the defendants knew that fact. That act of the locating commissioners, so far as we can see, was all that the law contemplated, in order to make it the duty of the defendants to appoint commissioners for performing the duties enjoined by the 8th section of the act. We cannot discover that the locating commissioners were required to give any kind of notice to the defendants, of what they had done, it being supposed that when the deed for the land, which they were required to procure, was filed in the office of the clerk of their court, they would know it, and would thereupon immediately proceed to appoint commissioners for laying out the lots and streets of the town, selling lots, &c., so that the public buildings of the county might be erected as soon as practicable.

We have considered the case as if all the proceedings were proper; but in truth, it was irregular that,two returns should have been made, one by a majority and the other by a minority of the justices of the county. As we said in the case of McCoy v. The justices of Harnett, 4 Jones’ Rep., 180. “A mandamus to ‘the justices of a county,’ issues against them as a body, and not as separate individuals; so they must make ‘a return’ as a body. To this end, it is proper for the justices to convene and, a majority being present, as for the transaction of any other county business, to agree upon *179the facts which are to be set out for their return. In this, as in other cases, a majority of those present will govern.— They will then appoint some one of their body, who, as their agent, is to make the proper affidavit, and do all other acts and things which may become necessary in the course of their proceeding.” But, notwithstanding the irregularity to which we have alluded, as the parties and their counsel have treated the return of a majority of the justices, as “the return of the justices of the county” we have regarded it as such, and, so regarding it, we .find nothing in it to prevent the relators from having an order for a peremptory mandamus against them; the judgment of the Superior Court to that effect, must therefore be affirmed.

Per Curiam,

Judgment affirmed.