Jones v. Town of North Wilkesboro

Connor, J. While the court does not in express .terms dismiss the action, it is evident that such is the effect of the judgment. The only relief asked is that defendant be enjoined from installing the system of water supply for the people of the town, as set out in the complaint. For the purpose of disposing of this .appeal, the facts set out in the complaint must be taken as true. The defendant relies upon the principle announced in Merrimon v. Paving Co., 142 N. C., 539, to sustain its first ground of demurrer. That case is not in point. There the corporate authorities had made a contract with the paving company to pave the streets, and plaintiff thought that the company was not performing its contract, and that the officers, whose duty it was to compel it to do so, in accordance with its terms, were derelict in the discharge of their duty. Without applying to the governing board of the municipality to do so, they brought the action. Upon a well-settled principle and uniform line of decisions,we held that they could not maintain it without making the essential averments, showing that the authorities refused to perform their duty, or such other averments as showed that a demand was useless and would be of no avail. • Here the allegation is that the municipal authorities are threatening to estab650 lisb and maintain a public nuisance, endangering the health and lives of the people. The demurrer admits the truth of the allegation. The first cause of demurrer cannot be. sustained. The second cause assigned involves the proposition that, unless a gross abuse of the discretion vested in the authorities is alleged, the court has no power to interfere. The rule by which the courts have been governed in the exercise of the injunctive power is well stated by Mr. Justice Hoke, in Rosenthal v. Goldsboro, 149 N. C., 128. There the authorities, deeming it conducive to the public health, directed the removal of shade trees on the street upon which plaintiff resided. It is said in the opinion: “The Court will not interfere with the exercise of discretionary powers conferred upon municipal corporations for the public welfare, unless their action should be so clearly unreasonable as to amount to an oppressive and'manifest abuse of their discretion.” This is sustained by a number of authorities cited in the opinion, and, we think, correctly marks the limitation upon the exercise of discretionary municipal authority. It falls short of holding that the discretion is without any limitation. It is not consistent with our conceptions of a municipal government of granted powers — certainly in the method of exercising them — ' that there should be no limitation, or, at least, that when called' into question, in good faith, by those who are interested in the result, officers may admit such allegations as are made here and successfully maintain the position that the citizens are without remedy. Conceding that the rule is correctly stated in the decision cited, we think that plaintiffs’ allegations bring their case within the power of the Court to interpose. It is not necessary to allege corruption or moral turpitude. It is manifest that a municipal corporation has no legal right to establish and maintain a condition which creates a public nuisance, per se — that is, a condition which seriously endangers the health and lives of the people. Harper v. Milwaukee, 30 Wis,, 365. The injunc-tive power of the court will be exercised with great caution, and only in a clear case. We decide in this appeal that the defendant was called upon to answer the allegations in the complaint. We do not think it should be permitted to dismiss charges so serious in their character. It may be that, upon the filing of [651] an answer, the authorities can show that the conditions are not correctly stated, and that by proper precaution the proposed water supply is either not impure or that by proper methods it can be purified. Of course, the Court could not undertake to direct the method of supplying the town with water. As the case is before us only upon demurrer, we forbear discussing the question further than is necessary to dispose of the exception to his Honor’s judgment. The defendant will file such answer as it may be advised, and upon notice the motion for an injunction will be heard before the judge having jurisdiction in the premises. There is Error.