Jones v. Town of North Wilkesboro

BbowN, J.,

dissenting: I concur in the dissent of Mr. Justice ■ Hoke.

It is true that a demurrer technically admits the truth of the facts alleged in the complaint, but it also raises the question of the power of the courts to grant the relief prayed for in the case, and that relief, broadly stated, is that the court take away from the municipal officers of the town the right to determine what “is best for their municipality and to substitute in their places the judgment of a jury.

The real question involved on this appeal is, does the complaint state a good cause of action? This is raised as well by the demurrer as by the motion made by defendant in this Court to dismiss the action, which motion, it is conceded, can be made at any time in the court below or in this Court.

Assuming that the defendant had filed an answer and denied every allegation in the complaint, it could then make the same motion. I see nothing alleged in the complaint which, if denied by answer, can properly be submitted to a jury or determined by a judge. The only issue which can be raised upon this complaint is as to whether the commissioners of the town of North "Wilkesboro have agreed upon and are about to install a water-supply system which may be deleterious to the health of its inhabitants.

There is no suggestion, much less allegation, that the commissioners, or any of them, are acting in bad faith or have any personal or pecuniary interest in the lands comprising the watershed, or in Hackett’s pond, or are acting in any dishonest or fraudulent manner. Therefore I am of opinion that, under *654 our Constitution, laws and form of government, the courts are not vested with a supervision and control of the honest exercise of the powers of the commissioners of the town. Under the law governing the town of North Wilkesboro the duty of providing a supply of wholesome water is left to the sound discretion of the town authorities whom the electors have chosen to administer their affairs. It is hardly to be supposed that such authorities have adopted a system of water supply which will bring on an epidemic of typhoid fever, and we are bound to assume that they have given the matter a thorough investigation, with, perhaps, expert assistance, before deciding so important a matter. Are twelve persons or five judges any better able to determine what is best for the welfare of the town than its chosen authorities, who reside there, drink the same water, breathe the same air, pay the same taxes and are in all respects identified with the interests of all other citizens ? The power to determine the matter is delegated, under the Constitution and laws of the State, to .the board of commissioners of the town. What right has this Court to substitute a jury of twelve men in their places, or to enjoin the honest exercise of powers conferred exclusively upon the defendants?

I know of no case to which the words of a great judge are more applicable than to this: “For the exercise of powers conferred by the Constitution,” says Chief Justice Pearson, “the people must rely upon the honesty of the members of the General Assembly and of the persons elected to fill places of trust in the several counties. The Court has no power, and is not capable if it had the power, of controlling the exercise of power conferred by the Constitution upon the legislative department of the Government or upon the county authorities.” Brodnax v. Croon, 64 N. C., 250.

Again the Chief Justice says: “In short, this Court is not capable of controlling the exercise of power on the part of the General Assembly or of the county authorities, and it cannot assume to do so without putting itself in antagonism as well to the General .Assembly as to the county authorities and erecting a despotism of five men, which is opposed to the fundamental principles of our Government and the usages of all times past.”

*655 We have affirmed and acted upon these heretofore well-settled principles at this term, in Hightower v. Raleigh, ante, 569.

In the absence of any allegations impeaching the good faith of the commissioners in adopting a water-supply -system, I think the motion to dismiss the action should be granted.'