Trotter v. Town of Franklin

Decision Date26 February 1908
Citation60 S.E. 509,146 N.C. 554
PartiesTROTTER v. TOWN OF FRANKLIN.
CourtNorth Carolina Supreme Court

Appeal from Superior Court, Macon County; W. R. Allen, Judge.

Action by J. S. Trotter against the Town of Franklin. From an order dissolving a temporary injunction, plaintiff appeals. Affirmed.

An alderman, who cast the only negative vote at a meeting of the board on the passage of a resolution extending a certain street and closing a by-street, and who had no property on the extended street or the discontinued by-street, was not entitled, though a taxpayer, to enjoin the execution of the resolution on the ground of the expense to be incurred and that it was not necessary, since the determination of such question was for the town authorities, and not for the courts.

Robertson & Benbow and Busbee & Busbee, for appellant.

Jones & Johnston and A. W. Horn, for appellee.

CLARK C.J.

The governing body of the town of Franklin consists of a mayor and five aldermen. The plaintiff was one of the aldermen. At a meeting of that body held April 30, 1906, it was ordered that Main street be extended and the extension graded, and that a short by-street which led from the end of Main street (before it was extended into Palmer street) be discontinued. It appears from the plat sent up that the extension of Main street leads into Palmer street, thus making, apparently, the former by-street no longer useful. To the passage of this order the only negative vote was cast by the plaintiff. The other aldermen present and the mayor voted in the affirmative. Another resolution as to certain grading received one additional negative vote. The plaintiff thereupon, in his capacity as taxpayer, brought a proceeding for an injunction against the town of Franklin, naming its mayor and aldermen, including (doubtless, by inadvertence) himself, as codefendants, to prevent the execution of aforesaid resolution of the town board. The temporary retraining order was dissolved upon the complaint and answer and after hearing affidavits filed on both sides, and the plaintiff appealed.

From the pleadings and affidavits it does not appear that the plaintiff has any property upon either the discontinued by-street or upon the extension of Main street, but the contrary; and the whole controversy turns upon the advisability of the resolution, which the plaintiff denies considering the expense, and that the town had heretofore gotten along...

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