Opinion
(Filed 17 November, 1926.)
1. State Highway Commission — Discretionary Powers — Courts — Change of Route — Statutes — Highways — Injunction.
Where the State Highway Commission has taken over a certain public road within a county, as a link in the State system of public highways, and the county in which it is situate has contracted to loan the State Commission a certain amount of money to be expended on its improvement, subject to the approval of the voters in issuing bonds for the purpose, and there is nothing in the contract that would require the route of the existing road to continue as it then was laid out: Held, the discretionary power vested in the State Highway Commission as to changing the route, vesting in them by statute, will not be interfered with by the courts, at the suit of the taxpayers residing in a corporated or unincorporated town, contending that they would not have voted for the bond issue except upon representation made to them that the then existing route would not be changed. As to whether an unincorporated town is a "principal town" within the meaning of the statute. Quaere?
2. Same — Contracts — Agreements Made Beforehand as to Exercise of Discretionary Powers.
The State Highway Commission, neither by contract nor otherwise, can be controlled beforehand in the exercise of its discretion, conferred on it by statute, as to the change of location of a public highway.
APPEAL by defendants from order of Bond, J., dated 15 September, 1926, continuing to the final hearing a temporary restraining order therefore issued in this action. From WAKE. Reversed.
J. R. Baggett, Brantly Womble and R. N. Simms for plaintiffs.
Attorney-General Brummitt and Assistant Attorney-General Ross for State Highway Commission.
Percy J. Olive for Board of Commissioners of Wake County.
CLARKSON, J., concurring in result.
Action to enjoin and to restrain perpetually defendants from expending certain funds in the construction of Route 21, of the State highway system, unless same shall be constructed as located prior to and at the time of an election held in Wake County, on 20 October, 1925. Said funds are the proceeds of the sale of bonds issued by the board of commissioners of Wake County, pursuant to such election, and were loaned, or are to be loaned, by said board to the State Highway Commission under the provisions of written contract between said board and said commission, dated 4 August, 1925.
Plaintiffs allege that Route 21 had been located prior to said election by the State Highway Commission so as to approach the town of Varina, in Wake County, from the north, and to pass into and through said town, and thence in a southerly direction to the Harnett County line; that in order to provide funds to be loaned to said highway commission by the board of commissioners of Wake County, for the construction of said Route 21, and of other routes included in the State highway system, in Wake County, an election was called by said board to determine whether or not bonds should be issued by the board for that purpose; that prior to said election, it was represented to plaintiffs and to other citizens and voters of Wake County, that if said election should result favorably to the issuance of said bonds, Route 21, as then located, would be constructed by the State Highway Commission and paid for out of funds loaned to said commission by the board of commissioners of Wake County derived from the sale of said bonds; that relying upon said representations, plaintiffs and others voted for the issuance of said bonds, and that but for such representations they would not have so voted; that since the said election, resulting in favor of the issuance of said bonds, and since the sale of the same, the State Highway Commission has changed the location of Route 21, and is now constructing the said route upon a location which does not approach the town of Varina from the north, and does not pass into and through said town, and thence to the Harnett County line; that by reason of the change in the location of Route 21, and of the expenditure of funds derived from the sale of said bonds in the construction of said route otherwise than as located at the time of said election, defendants are wrongfully diverting said funds from the purpose for which said bonds were authorized by the voters of Wake County.
Defendants deny that representations as alleged in their complaint were made to plaintiffs, with respect to the location of Route 21; they expressly deny that defendants, or either of them, made or authorized others to make such representations; they allege that said bonds were authorized by the voters of Wake County by an election called by the board of commissioners of said county, pursuant to a petition filed according to law with said board, and that the proceeds of said bonds have been loaned to the State Highway Commission pursuant to a written contract, between said board and said commission, dated 4 August, 1925; and that the fund derived from the sale of said bonds has been and will be expended by defendants in accordance with said contract, and as authorized by the voters of Wake County, at said election.
Defendants further deny that Route 21, extending from Raleigh south to the Harnett County line, was located by the State Highway Commission, or otherwise, prior to or at the time of said election, as plaintiffs allege, and aver, on the contrary, that while preliminary surveys were made under the direction of the commission, and rights of way secured, for the location of said Route 21, prior to said election, as alleged in the complaint, location of said route was not finally determined by said commission, until the funds for its construction were in hand or available; and that said highway commission now proposes to construct, and was engaged in the construction of, said Route 21, until restrained by the temporary order issued herein, as finally located by said highway commission in the exercise of the discretion vested in said commission by law.
Upon the hearing of the order to show cause why the temporary restraining order should not be continued to the final hearing, Judge Bond was of the opinion that defendants had failed to show such cause, and thereupon signed an order denying defendants' motion to dissolve said temporary restraining order, and continuing same to the final hearing, in order that issues of fact, arising upon the pleadings, might be submitted to and passed upon by a jury. From this order defendants appealed to the Supreme Court.
Prior to 4 August, 1925, the State Highway Commission, pursuant to the provisions of chapter 2, Public Laws of 1921, had designated, taken over and assumed control of certain roads or highways in Wake County as parts of or links in the system of State highways, as proposed by said commission, acting under the authority of said statute. The said commission had been unable theretofore to construct said roads or highways, because sufficient funds for that purpose had not been available prior to said date.
On said date an agreement was entered into between the board of commissioners of Wake County and the State Highway Commission, by which said board agreed to advance said commission a fixed sum of money, to be used in the construction of said roads, provided the voters of Wake County, at an election to be held thereafter, should approve the issuance of bonds required for raising said sum. The highway commission obligated itself to repay such sums as might be advanced under this agreement out of any funds which should thereafter come into its hands, allocated for construction of the State highway system in Wake County.
Thereafter, on 20 October, 1925, an election was held, and the issuance of said bonds approved by a majority of the voters of the county. These bonds have been issued and sold by the board, and the proceeds loaned to the commission, pursuant to the agreement, which is valid, and authorized by statute. Young v. Highway Commission, 190 N.C. 52; Lassiter v. Comrs., 188 N.C. 379.
Among the roads in Wake County theretofore taken over by the State Highway Commission, as parts of or links in the State highway system, was the road extending from Raleigh south to the Harnett County line. This road constituted a part of or a link in Route 21, of said system. It is shown on the map, which was attached to and formed a part of the bill enacted by the General Assembly as chapter 2, Public Laws 1921. The word "Varina" appears on said map, indicating, as plaintiffs contend, the approximate location of a town of that name on said road. It is conceded that at the time of the enactment of said bill no incorporated town of that name was located on said road. There is uncontradicted evidence on this record that there was then and is now a community located on said road, as it existed at the time the statute was enacted, known and designated for many purposes as the "Town of Varina"; said community maintains a railroad station, a post office, a bank, a hotel, about twenty stores, markets for the sale of cotton, tobacco and other farm products, and residences for a prosperous and thrifty population. It is the trading and marketing center for a prosperous agricultural section, including portions of several counties. A part of the territory occupied by said community is included within the corporate limits of the town of Fuquay Springs, which was incorporated by chapter 167, Private Laws of 1915; a large part of the business and residential sections of said community, however, is outside the said corporate limits. It does not appear that there are any fixed or definite limits to or boundaries of the territory occupied by said community.
Plaintiffs contend that said "Town of Varina," although not incorporated as a town, is a "principal town," within the meaning of the proviso in section 7, ch. 2, Public Laws 1921, and that therefore it cannot be disconnected from the State highway system by the exercise of the admitted power of the State Highway Commission, subject to the proviso, to change, alter, add to or discontinue the roads shown on the map, as constituting the State Highway system, proposed by the General Assembly. It does not appear upon this record that any map, showing the roads in Wake County, comprising links in the State highway system, as proposed by the State Highway Commission, in accordance with the provisions of the statute, was ever posted at the courthouse door in said county. Nor is there evidence that said highway commission had made a final decision under the provisions of the statute as to the location of the road, extending from Raleigh south to the Harnett County line, prior to the date of the election on 20 October, 1925. It is not necessary for us now to decide the interesting question presented by plaintiff's contention, whether incorporation is a requisite of a "principal town," as that term is used in the provision in section 7, ch. 2, Public Laws 1921. Upon the facts appearing on this record, we must hold that the State Highway Commission, not having theretofore finally decided upon the location of Route 21, had the power conferred by statute to change the road extending from Raleigh south to the Harnett County line, and to adopt a new location for said road, as a part of or a link in Route 21; such power is not affected by the fact that the word "Varina" appears on the map, for whether Varina is a principal town or not, it appears that Route 21, as now located, passes within 300 feet of the railroad station in said town. It cannot be held as a matter of law that upon the admitted facts, Varina has been disconnected from or deprived of the service of the State highway system. No question or issue of fact involved in the decision of the highway commission with respect to the location of Route 21 is raised by the pleadings requiring that it be submitted to or passed upon by a jury; whether the highway commission had the power to change the location of the road, presents a question of law only, to be determined by the Court. We are of the opinion that the highway commission had such power, and that upon the facts alleged in the complaint its exercise of such power is not subject to judicial review.
The decision of this Court in Newton v. Highway Commission, ante, 54, has no application to this case. The opinion written by Brogden, J., in that case is not an authority for holding that upon the facts of this case the highway commission was without power to locate Route 21, as it has done since the date of the election. Nor is the decision in Cameron v. Highway Commission, 188 N.C. 84, necessarily determinative of the question here presented.
The validity of the bonds issued and sold by the board of commissioners of Wake County, in order to provide funds to be loaned by said board to the State Highway Commission, to enable said commission to build, immediately, and without waiting for funds from the State, portions of or links in the system of State highways, located in Wake County, is not questioned by plaintiffs in this case. They contend that by reason of representations made to them and to other voters of Wake County, with reference to the location of Route 21, the State Highway Commission has no power to abandon the location of said route, which they allege was made prior to the election, and to adopt another location, which does not approach Varina from the north, or pass into and through Varina, or to use the funds loaned to it by the board of commissioners to construct the route upon the new location. They do not allege that the board of commissioners or the highway commission made the representations with respect to the location of said route, upon which they allege they relied, in voting for the issuance of said bonds; they allege that said representations were made by a member of the commission, acting in his individual and not in his official capacity, and by advocates of the issuance of the bonds. No evidence was offered at the hearing that such representations were made by either the board or the commission, or that they were authorized or ratified by either.
Neither the board nor the commission can be controlled or affected, as to the manner in which they shall exercise their discretion with respect to the expenditure of the proceeds of said bonds, or with respect to the location of roads to be constructed and paid for out of funds derived from the sale of said bonds, by representations of an individual member of the State Highway Commission made prior to the date of the agreement between the board and the commission or by the representations of advocates of the issuance of said bonds, made during the campaign preceding the election, as to the location of roads to be constructed thereafter by the highway commission and paid for out of advancements to be made to said commission by the board of commissioners of Wake County.
Defendants deny that representations were made, as alleged in the complaint; no issue of fact, however, is thereby raised, which would be determinative of the rights of the parties to this action. If it should be found by a jury, upon proper allegations in the complaint, supported by competent evidence, that both the board and the highway commission had, prior to the election, not only represented to plaintiffs that they would but had, further, each acting in its corporate capacity, for a valuable consideration, received by said board or said commission for sole benefit of the public, agreed to construct said Route 21, upon a fixed and definite location, such finding would not support a judgment or decree giving to plaintiffs relief as demanded or prayed for in their complaint. Such an agreement would be void, and unenforceable by the courts, as against public policy. Neither the board nor the commission can absolve itself from its duty, or deprive itself of its right, to exercise discretion vested in each by law in the performance of a public duty, when called upon to perform such duty, by representations made or agreements or contracts entered into, with respect to the manner in which it will then act. Each is required to retain its freedom of judgment at all times, up to and including the very moment when it is called upon to act, so that its decisions when finally made will be influenced then only by a regard for the public welfare. Edwards v. Goldsboro, 141 N.C. 60.
An agreement or contract made by individuals with public officials for the purpose of influencing the exercise of discretion vested in them by law, as to the manner in which they shall perform public duties, although the consideration for such agreement or contract ensures to the benefit of the public, is void as against public policy. Such officials cannot bind themselves by such agreements or contracts, nor can they be held bound by the courts. This well-settled principle certainly precludes the courts from rendering any judgment or decree in favor of plaintiffs in this case, who do not allege that there was any agreement, or contract with defendants, upon which they seek relief. It is not even alleged that the representations were made by defendants.
We are of the opinion that there was error in denying defendants' motion that the temporary restraining order be dissolved and in continuing the said order to the final hearing. There are no issues of fact to be submitted to or passed upon by a jury. The temporary restraining order should be dissolved. It is so ordered.
Reversed.