Opinion
(June Term, 1841.)
1. The Legislature has a constitutional right to pass an act changing the location of the seat of justice of a county, although a contract for the purchase of a particular site had already been made by the commissioners appointed by law for that purpose.
2. Though a peremptory mandamus implies that the party has been fully heard, and, therefore, that he can allege no reason for not obeying it, yet an exception is of necessity implied that such obedience is not forbidden by a new law passed after the writ was awarded.
APPEAL from Bailey, J., at Spring Term, 1841, of BUNCOMBE. The facts of the case are sufficiently set forth in the opinion.
The Attorney-General for the State.
No counsel for defendants.
The present question grows out of the same proceeding which was before the Court at June Term, 1840, in which this Court affirmed the judgment of the Superior Court of Buncombe, awarding a peremptory mandamus to Robert Jones, Asa Edney, John Miller, and Richard Allen, commanding them, with B. Wilson, E. Hightower, and John Clayton, to perform the duties, imposed by section 11 of the act of 1838, of procuring by purchase or donation a proper tract of land for the county town of Henderson County. S. v. Jones, ante, 1298. Upon receiving the certificate from this Court, the court of Buncombe issued the peremptory writ at October Term, 1840, returnable to April Term, 1841. In the meanwhile the Legislature met, in November, 1840, and passed an act, chapter 53, entitled "An act to fix the location of the town of Hendersonville," and thereby enacted (415) that the location of the courthouse of Henderson County should be made by the qualified voters of that county; and, after prescribing the period and manner of holding the election, the act appoints other commissioners to carry into effect the decision by the popular voice, by procuring, by purchase or donation, not less than 50 acres of land, including the point designated by the voters, or within one mile thereof, and laying out thereon a town, in which the courthouse and other public buildings shall be erected. And than, amongst other things, it is expressly enacted, "that such of the existing laws as come in conflict with the provisions of this act are hereby repealed."
After the enactment of this statute the commissioners to whom the mandamus was issued declined proceeding further under it; and at April Term, 1841, the relators moved for an attachment against them. This was opposed upon the strength of the act of 1840. But on the other side it was contended, (1) that no plea could be received, nor excuse heard, for not obeying a peremptory mandamus; and (2) that the act of 1840 was unconstitutional, as it violated the contract (as stated in the former case) made with Johnston, for land for a town site. The court refused the motion, and the relators appealed.
We concur in the decision of his Honor. If a definitive contract had been entered into between Johnston and the persons appointed under the act of 1838 to contract for the public, yet it would be entirely competent to the Legislature to remove the seat of justice from that to any other place in the county. The designation of a place in which the courts of a county shall be held, the mode of making the selection, and of appointing the persons to act on behalf of the public in procuring or disposing of land for those purposes, or erecting the requisite buildings, are matters of political arrangement and expediency, and necessarily the subjects of legislative discretion. The Legislature is charged with the duty of providing for the public convenience, and the reasons, arising out of public convenience, may at one time be strong for (416) holding the courts at one place, and, at another time, at another place. It very often happens, indeed, that the effect on the value of private property forms a material consideration with the Legislature in deciding on the question of change, and properly prevents any change not plainly demanded by the general welfare. Still, the Legislature is to judge of that, and if the advantage of the community at large requires it, private interests must yield. The incidental consequences of the exercise of an useful and indispensable legislative power must be submitted to by every citizen.
It is true that a peremptory writ of mandamus implies that the party has been fully heard; and, therefore, that he can allege no reason why he has not obeyed it. But an exception is, of necessity, implied that such obedience is not forbidden by a new law passed after the writ was awarded. These persons were appointed to act as public agents in this matter, and the writ was to enforce the performance of that duty to the public. Now, the public has since revoked its authority, and taken away the power to act in the premises from them, and conferred it on other persons; and, therefore, it is impossible that the public can complain of their former agents, or punish them for not continuing to act.
PER CURIAM. Affirmed.
Cited: S. v. Allen, 24 N.C. 184; Sedberry v. Commissioners, 66 N.C. 493; McCormac v. Commissioners, 90 N.C. 445.
(417)