Lucas v. Town of Belhaven

ClabK, C. J. Tbe validity of tbe $60,000 of bonds in question was upheld in tbe appeal of Swindell v. Belhaven, 173 N. C., 1. So there is no controversy on that point. Neither is there any exception by J. B. McCrary Company, who are parties to this action. It appeared in an answer filed by Slayton & Co., and was not denied here, that Slayton •& Co. bad offered to return tbe $60,000 bonds upon tbe surrender to them of tbe $57,225 in cash which they bad deposited to tbe credit of tbe town in a bank in Washington, N. C. Tbe only question presented, therefore, is whether tbe court could by mandamus direct tbe present board of aldermen of Belhaven to proceed with tbe installation of lights, water, and sewerage in tbe town of Bel-haven. There being no question of tbe enforcement of any contracts with outside parties, it would seem very clear that tbe right of tbe present board to rescind a resolution passed by tbe former board for tbe installation of these public improvements cannot be gainsaid. It was a matter which rested in tbe discretion of tbe former board to pass such resolution, Brodnax v. Groom, 64 N. C., 244, which tbe courts cannot supervise, and [128] tbe same power resided in tbe present board to rescind such order, Ward v. Comrs., 146 N. C., 534; Glenn v. Comrs., 139 N. C., 412. It would seem, however, tbat as tbe contract witb tbe J. B. IfcOrary Company was conditioned upon funds being provided by tbe sale of tbe bonds, tbat tbat condition bad not been met, and tbat sucb contract can bave no validity, for tbe attempted sale to Slayton & Co. was invalid because tbe bonds were not sold at par and interest, wbicb was in violation of the resolution of tbe aldermen of 20 September, 1916 (under wbicb tbe bonds were directed to be issued), wbicb required a sale at par and interest. Also, for tbe further reason tbat tbe bonds were delivered to Slayton & Co. in violation of tbe injunction then in force wbicb directed tbat no further steps should be taken to effectuate any contract for tbe execution of tbe work. It was also stated in! tbe argument here by counsel for tbe new board tbat there would be no opposition to tbe installation of a plant to furnish electric lights, but tbat tbe people of tbe town bad elected them to stay tbe installation of water and sewerage at this time owing to tbe increased expense attending it at tbe present juncture, and tbat tbe board proposed to submit tbe issuance of bonds for sucb purpose to a vote of tbe people. Tbe action of tbe court in both appeals is Beversed.