Gaddis v. Cherokee County Road Commission

Brogden, J. The judgment of the court commands the defendant to proceed within ten days to make the change in location of the road in accordance with the resolution of April, 1926. This is equivalent to a mandamus. The plaintiff insists that the resolution of April, 1926, constituted a contract between him and the defendant with respect to the location of the road in controversy. This Court has held that administrative boards, exercising public functions, cannot by contract deprive themselves of the right to exercise the discretion delegated by law, in the performance of public duties, and the courts will not interfere with or supervise the performance of such duties in the absence of fraud, oppression, bad faith or plain abuse of the power vested in such public bodies. In other words, the discretion exercised must actually exist under the law, and even then, it cannot be exercised in a capricious, arbitrary, oppressive and unreasonable manner. Edwards v. Goldsboro, 141 N. C., 60; Johnson v. Comrs., 192 N. C., 561; Carlyle v. Highway Commission, 193 N. C., 36. The powers delegated by statute to the defendant are contained in chapter 37, Public-Local Laws, Extra Session, 1924. In section 7 of the act the defendant is authorized to relocate any road in the county in order to make it more useful, “and may order the laying out and construction of new roads.” Section 9 of the act empowers the defendant to condemn a right of way for any proposed road “or relocation of any such.” This statute does not specify how such location shall be made, neither does it prescribe any formalities to be observed by the defendant in determining locations or relocations, or changes in locations. Hence, it necessarily follows that such matters were committed to the sound and reasonable discretion of the defendant. In such event the law has been tersely stated by Varser, J., in Board of Education v. Comrs., *112 189 N. C., 650, as follows: “Mandamus only lies to compel action and not to direct it if the asserted powers are discretionary.” Again, in Barnes v. Comrs., 135 N. C., 41, Walker, J., discussing the principle of mandamus, said: “While there may be authorities to the contrary elsewhere, the result of judicial decision in this State is that the body clothed with the discretion cannot by any process of the court be compelled to do anything but exercise that discretion — to act in accordance with the law — and while the court may do this, it-has no power or jurisdiction to direct the course the exercise of the discretion shall take in order to bring about any given result.” .Applying these principles, it is apparent that the trial judge was in error, under the circumstances, in making the peremptory order contained in the judgment. But the plaintiff is not without full and ample remedy. The defendant had full power to adopt the resolution of April, 1926. This resolution was not a contract, but a positive order, changing the location of said road thirty feet from plaintiff’s house, in the exercise of discretion committed by law to the defendant. The trial judge finds that said order of April, 1926, has never been canceled and still remains in full force and effect. If so, the road, in contemplation of law, is now located thirty feet from plaintiff’s house. If the defendant, in the exercise of its discretion, rescinds the order of April, 1926, and, as it attempted to do, relocates the road at plaintiff’s house, where it existed prior to April, 1926, then in such event the plaintiff would immediately have an action for all damages contemplated by law for the taking of his property. The plaintiff insists, however, that his right of action for damages is barred by section 10 of the act creating the defendant and herein-before referred to. Section 10 of said act provides in substance that the party aggrieved “by the taking of such material, or of his land for right of way, may, within sixty days after such road is completed, make application to the board of county commissioners for the assessment of damages and benefits under the provision of the laws relating to state highways.” The trial judge finds as a fact “that more than sixty days expired between the completion of the road and the adoption of the order of April, 1926, but the plaintiff’s right of action is not barred. The statute provides that the aggrieved party may make application within sixty days after such road is completed, and the judge finds that early in 1925, the plaintiff appeared before the defendant and made complaint, and that the defendant “being in session, exercising the duties imposed upon it by law, agreed to give plaintiff relief as requested, and from time to time thereafter, when the defendant was sitting as a body, continued to agree to grant the request of the plaintiff to move his house or move the road,” etc. *113 Under these facts the defendant cannot plead tbe statute of limitation in bar of plaintiff’s right to recover damages. Haymore v. Comrs., 85 N. C., 268; Tomlinson v. Bennett, 145 N. C., 279. In the Tomlinson case the law is thus stated: “It is settled that if plaintiff was prevented from bringing his action during the statutory period by such conduct on the part of the defendant as makes it inequitable for him to plead the statute, or by reason of any agreement not to do so, he will not be permitted to defeat plaintiff’s action by interposing the plea.” Reversed.