Opinion
(August Term, 1848.)
1. Where, under authority conferred by an act of Assembly, commissioners are appointed by a county court to lay off a county-seat, etc., a court of equity has no power, on the complaint of relators through the solicitor, not alleging that any private irremediable injury is to be done to them, to interfere with the proceedings of such commissioners.
2. If such commissioners are guilty of any breach or omission of duty towards the public, the courts of common law, through the high officers of the State, will afford relief by a writ of mandamus or quo warranto.
APPEAL, from an interlocutory order of the Court of Equity of RUTHERFORD, at Spring Term, 1848, Battle, J., presiding.
Gaither, Baxter, and Edney for plaintiff.
N.W. Woodfin and Bynum for defendants.
The Legislature at the last session established the county of Polk, and by a supplemental act directed that a tract of land containing not less than 100 acres should be purchased and a conveyance taken to the chairman of the county court and his successors in office for the use of the county, upon which a town should be laid off, where the courthouse and jail should be reacted and the courts should be held after the completion of the courthouse; and appointed William S. Mills, James Blackwell, Jonathan King, Dr. C. Mills, and William F. Jones, commissioners to locate the said county-seat at or within 5 miles of the residence of Murrell Mills, and to purchase and take a conveyance for the land. By other parts of the act the first term of the county court was fixed on the sixth Monday after the sixth Monday of December, 1846, and the court was required at the first session to appoint five commissioners to lay off the lots of the town, and, after selecting those requisite for public uses, to sell at auction the others at such time and after such notice as the court might direct, upon a credit of one and two years; and the proceeds of the sale were appropriated to building a courthouse (245) and jail.
The present proceeding is an information by the solicitor for the State for the Seventh Circuit, filed in the court of equity for Rutherford County, upon the relation of Marvill Mills and William Taber for themselves and on behalf of the other citizens of Polk County. It charges that Jonathan King, believing that a majority of the commissioners, from selfish pecuniary motives, had determined to make a location at one extreme end of the county, to the injury of the citizens, refused to act as a commissioner; that after such refusal William S. Mills, Blackwell, and C. Mills agreed upon a location known as "Hawkins Ridge," and contracted for a conveyance of the land, and in pursuance thereof procured a deed to be executed to the chairman of the county court of Polk and his successors in office for a part thereof containing 72 acres; that for the residue thereof no conveyance had been as yet obtained, and that in consequence of the right of one Wales and Porter to any mines or minerals that might be in the land, a good title could not be had therefor, and, moreover, that several of the bargainors in the deed for the 72 acres were married women, who had not fully executed the same by acknowledgment thereof upon privy examination, and that, in fact, at the execution thereof no chairman of the county court had been duly appointed, by reason that the day fixed by the act for the holding of the court was an impossible one. The information further charges that, at a court held on the eighth Monday after the fourth Monday of December, 1846, towit, on the fourth Monday of February, 1847, George J. Mills, Joseph M. Carson, Henry Earle, and the said Columbus Mills, and William F. Jones were appointed commissioners to lay off town lots and sell them, as provided for in the act; that the majority of the said commissioners refused to proceed to lay off the town at the place selected by the other commissioners, upon the ground that the location had (246) not then been legally made, and that thereupon William S. Mills, Blackwell, and Dr. C. Mills proposed to Jonathan King to meet them in conference on their duties, and assured him that they had abandoned the location of "Hawkins Ridge" and were willing to fix on some other more central and just to all the citizens of the county; and that under this assurance, King met those and the other commissioner, Jones, on 25 May, 1847, and proposed to act with them if they would agree in writing to select another location within certain bounds, which proposition they refused, and he then notified them that he would not act; that thereupon the other four proceeded, by themselves, to vote for the location, and that three of them, William S. Mills, James Blackwell, and Dr. C. Mills, voted for "Hawkins Ridge," and Jones voted for another place; and that those three persons, William S. Mills, Blackwell, and Dr. C. Mills, fraudulently combined to select the place which they did, in order to promote their private interest by having the county-seat in the vicinity of their own lands and of a turnpike road in which they are stockholders, to the injury of a majority of the citizens of the county; that "Hawkins Ridge" is an extensive ridge of many hundred acres and is indefinite, and that the land conveyed to the chairman of the court is not within 5 miles of the residence of Murrell Mills, and is within 2 1/2 miles of one extreme of the county.
The information further charges that, after the selection made on 25 May, four of the commissioners appointed by the county court, namely, Messrs. Carson, C. Mills, Earle, and Jones, met and, without the sanction or cooperation of the others, George J. Mills laid off the town on the lands so selected and purchased by the first set of commissioners and had advertised the lots for sale on 21 July, 1847, the bill being filed on the 19th of the same month; that by a sale of the lots on that day irreparable injury would be done to the citizens of the county, because, from the doubts generally entertained of (247) the legality of the location, the sufficiency of the title to the land, and of the validity of the appointment of the commissioners and of their authority to make the sale, the lots would sell much lower than under different circumstances they would; and that, consequently, there would be a necessity for taxation on the citizens of the county for the erection of the public buildings, and the justices of the county court, under a mistaken notion of their duty, would levy a tax for that purpose; and that the actings of the said commissioners, under the color of authority, tend to mislead the citizens of the county, to engender excitement and litigation, and to the imposition of additional taxes, and defeat the object of the Legislature in establishing the county, namely, that the county-seat might be convenient to all the citizens of the county.
The prayer is for an injunction to the commissioners George J. Mills, Columbus Mills, William F. Jones, Joseph M. Carson, and Henry Earle, to restrain them from selling or in any way disposing of the town lots or otherwise acting as commissioners under the said appointment. The injunction was granted upon the bill as prayed. At the succeeding term the defendants answered, except George J. Mills, who allowed the bill to be taken pro confesso; and upon their answers the other defendants moved to dissolve the injunction, insisting, moreover, that there was no ground of equity on which the bill could be sustained, and that it was improperly filed in the name of the solicitor, instead of that of the Attorney-General; that the court of Rutherford had no jurisdiction of the cause, as the land was in Polk, and all the parties lived there. The court refused to dissolve the injunction, but allowed the defendant to appeal.
The answers filed fully remove the imputation upon the integrity of the commissioners, and meet the allegations respecting the defects in the title and conveyance, and the inconvenience of the place selected to the mass of the people of the county, and upon the merits of the case seem clear for the defendants, according to the answers. It appears, however, that there was a mistake in the act in naming the person at whose house the county courts were to be held and within 5 miles of whose residence the county-seat was to be fixed, by calling him Murrell Mills, when there is no such person in the county, and the answers state that Marvill Mills was meant. That circumstance and the singular mistake respecting the periods for holding the courts create the only difficulty that could be raised in the case, by giving color to the doubt as to the power of the justices to hold a court, appoint a chairman and the commissioners, or do any other acts. We do not think there is a great deal in an objection of that kind, when urged in opposition to the entire administration of justice or the existence of any judicial tribunal in a county. But the court does not deem it necessary to discuss those questions, nor to advert to the answers particularly, or to other objections, taken in the court below, one of them excepted, because on that our opinion is clear that the bill will not lie. It is, that this is a subject not cognizable in a court of equity. It is an attempt to restrain public agents in the discharge of public duty from performing their office, because they are acting or supposed to be acting so unfaithfully, corruptly, and illegally to the detriment, not of any individual in particular, but of the public at large, or of a county at least. There is no such jurisdiction, we think. If, indeed, persons acting under a statute as commissioners to lay out a road, for example, or perform any other function of the like nature, unnecessarily and improperly encroach upon the rights and property of the citizen, or erect a nuisance to his (249) annoyance and injury, doubtless a court of equity will, at the suit of the citizen, protect him by injunction; for the color of a public appointment, though conferred even directly by the Legislature, cannot justify private wrong, nor induce the Court to withhold its power of preventive justice in anticipation of irremediable mischief to the citizen, if the case be otherwise a proper one to call for such an exertion of the power of the court. But here no one complains of any such impending injury; but the gravamen of the bill is that the court is to be placed at a point not as convenient to a majority of the citizens as it might be, and, secondly, that owing to certain doubts of the legality of the proceedings, in making the selection and appointing agents for the sale of the lots, as good prices cannot probably be had for the lots as if there were no such doubts. That is said to constitute it a case of impending irreparable loss, calling for the interposition of the court of equity. Now, if it were such a case of loss as that supposed, still these relators would have no right to institute this proceeding, for they have sustained no private wrong in the matter to be redressed, nor have they a separate interest to be protected. The loss, if any, is to call on the public, the State, or the county, and the power and duty of guarding those interests are not in private persons, undertaking the office of relators, but devolve on the high officers of the State, acting in their own names ex officio. But if this were an information by the Attorney-General ex officio we should still hold that it would not lie. We know not of such a jurisdiction, and no instance of its exercise has been cited to us. The case made in the information is one of usurped public authority, or of the illegal and corrupt exercise of a public power — acts which amount to offenses or defaults, to be remedied in a different way. The State does not come into the court of equity to enjoin her officers against a breach or omission of duty, but she enforces the performance of a public trust by mandamus or inquires into their authority, and deprives them of that usurped, by quo warranto. That would have been the (250) proper course here, if the officer charged with that duty had, for reasons affecting the public, deemed this a fit case for his ex officio interference — a thing that could hardly be expected under the circumstances. Equity can no more interfere to prohibit the commissioners from exercising their judgments in the selection of a place for a county town and public buildings or from raising money for the erection of those buildings by a sale of the town lots, than it would to prevent by injunction the justices of the county from laying a tax for those or other purposes, that some one might think impolitic and prejudicial, or to compel them to levy one that might be beneficially applied. Then commissioners and the justices of the peace in such cases act as political agents, and are answerable criminaliter for corrupt misfeasances or nonfeasances, and may be enforced to do their duty by means provided by the common law, or such as may be provided by the Legislature. A chancellor cannot undertake to interfere with their political functions, either to punish or prevent the commission of crimes or acts that partake of the nature of crimes, of public offenses of commission or omission. We might as well undertake to issue an injunction upon the ground that it was impolitic to establish the county. For this reason the Court holds that the injunction ought to have been dissolved with costs, to be paid by the relators, who must also pay the costs in this Court.
PER CURIAM. Reversed.
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