Bennett v. . Commissioners , 125 N.C. 468 ( 1899 )

The opinion states the case. Section 11, chapter 558, Laws 1899, prescribes that the town commissioners of Bryson City shall appropriate one-third and the county commissioners of Swain two-thirds of the funds necessary to establish and keep in operation the dispensary created in said town by that act, the net profits arising therefrom to be divided between the town and county in the same proportion. The county and town commissioners aforesaid declined to make any appropriation for the establishment of the dispensary. Section 3 of the said act requires the manager to give the bond therein prescribes to be approved as other official bonds, and section 14 prescribes the bonds for the dispensary commissioners. These bonds were prepared and tendered to the county commissioners, who refused to act on them, either to approve or to disapprove the same, on the ground that having refused to make the appropriation required by the act, the dispensary became illegal.

This is a proceeding by mandamus to compel the county commissioners to consider and pass upon the bonds aforesaid tendered by the plaintiffs, manager and commissioners of the dispensary. The court below properly granted the mandamus. The validity of the act was made in nowise dependent upon its acceptance by the county and town commissioners. They were simply directed by the act to make certain appropriations to aid in the establishment of the dispensary. That was a purely incidental requirement, and, if unconstitutional, as defendants claim, it would not impair the constitutionality of the rest of the act, for an act may be constitutional in part and unconstitutional in part. McCless v. Meekins, 117 N.C. 34.

Whether the requirement of the appropriation of money by the county and town commissioners is constitutional or not, is not presented, as the plaintiffs not only do not ask judgment that the appropriation be made, but in open court expressly waived all claim to it. The rest of the act is in substance the same as that (470) providing a dispensary for Cumberland County (ch. 235, Laws 1897), which was held constitutional in Guy v. Comrs., 122 N.C. 471, and therefore need not be discussed. The commissioners should, as ordered by the court below, proceed in good faith, according to the purpose of the act, to consider and pass upon the sufficiency of the bonds tendered by the plaintiffs.

That mandamus is the proper remedy against a public officer who refuses to discharge a specific duty required of him by law, has been often decided. R. R. v. Jenkins, 68 N.C. 602, cited in Russell v. Ayer, 120 N.C. at p. 186; Tate v. Comrs., 122 N.C. 812; Harrington v. King, 117 N.C. 117.

Affirmed.

Cited: Garsed v. Greensboro, 126 N.C. 162; S. v. Gallop, ib., 984; S.v. Smith, ib., 1058; Martin v. Clark, 135 N.C. 179.