
    A. S. MERRIMON SOLICITOR, &C., ON THE RELATION OF ELIJAH HERBERT vs. WILLIAM M. SANDERSON AND OTHERS.
    Where commissioners.are appointed by an Act of Assembly to “ select and determine a site for the permanent seat"of justice " in a County, and are directed, when they have selected a site, to give notice thereof to other commissioners appointed by the same Act, for the purpose of' acquiring title to the site selected.
    The commissioners for location may /make a conditional selection ; qnd i: the condition be broken by the owner of the land selected as the site, the commissioners may make a new selection.
    The case of the State on the relation of Hill vs. Bonner, Busbee, 2f>7, cir«i and approved. ,
    This was a writ of mandamus at the suit of the Solicitor of' the Seventh Judicial Circuit, on the relation of Elijah Herbert against the defendants/ commanding them to procure a conveyance to the Chairman of the County Court ol Clay County, of a tract of land which had been selected as the writ supposed, by the commissioners appointed for that purpose, for, the County site of that County, or to show cause at the next term.
    The affidavit of the relator stated that the County of Clay was established by an Act of the General Assembly at the session of I860-’61, and that certain persons, naming them, citizens of Cherokee County were appointed commissioners to “ select and determine a site for the permanent seat of justice for said County,” and a majority of them were empowered to perform any duty imposed on them by the Act. The Act directed that when these commissioners had, in pursuance of its provisions, located the seat of justice, it should be the duty of the defendants, or a majority of them, to buy or receive, by donation, a tract of land for the County of Clay, consisting of not less than twenty-five acres, to be conveyed to tbe Chairman of the County Court and his successors in office, to be held by him and them for the use and benefit of the County. The relator further stated, that in April, 1861, a majority of the commissioners first named in the Act, assembled in the County and proceeded to the execution of their duty, and did actually locate a site for the permanent seat of justice, on the lands of James Coleman : that they “ staked off” and “ marked out” the site on James Coleman’s land, and made a written report of their proceedings, signed it and read it to the- people assembled at the place so selected, and then delivered their report to the commissioners named in the second place in the Act, to wit: the defendants ; that James Coleman proposed to the commissioners for locating the site, to give twenty-five acres of land for the uso of the County, at the place and on the site established by them ; that the relator proposed to give in addition to the twenty-five acres, fifteen acres of his own land, adjoining the twenty-five, and that Robert B. Chambers proposed to give fifteen acres of his land adjoining the twenty-five- acres ; and that Coleman,, Chambers and the relator are willing and ready noio and at all times, to convey said lands according to the provisions of the Act.
    Eour of the defendants, William M. Sanderson, Ezekiel Brown, John H. Johnson, and George Bristol, being the majority of the commissioners appointed to acquire title to the County site, make a return, stating that the majority of the commissioners appointed to select a site, selected therefor “a tract of land belonging to James Coleman, .upon the following conditions, to wit: that said Coleman should give twenty-five acres of land selected for said site to the County for the town site, with the liberty to reserve one choice lot, and that R. B. Chambers was to give fifteen aeres of land “ convenient and adjoining ” the land so conditionally selected for a site as aforesaid, and tbe relator, E. Herbert, was to give fifteen acres of land also convenient and adjoining tbe twenty-five acres to be givefi by Coleman that upon receiving the report of tbe first named commissioners as to tbe selection of a site, they, together with Coleman and Chambers, had a form of a deed prepared proper for conveying the said 25 acres to the Chairman of the County Court, and offered said writing to Coleman, to be executed by him as his deed; Coleman refused to execute that deed, add refused to convey any land for a County site, except upon condition to be expressed in the deed, that the estate conveyed by it should cease and' determine in case any spirituous liquors should be sold upon any of the lots in the proposed town. The return sets out with particularity, the refusal of Chambers and the relator to convey the fifteen acres which each had promised to give, and ' goes on to state. that these defendants gave notice to the commissioners for selection of a site, of the refusal of Coleman, Herbert and the relator to convey, as they had promised, and thereupon the' commissioners for selection did u select and determine ” a site on the lands of William Hancock, and gave notice thereof to these defendants who. procured from Hancock a deed of conveyance according to the Act of Assembly, and reported what they had done to the County Court; and the County Court directed a temporary Court House to be built, in which the Court has been held since its completion, and the lots for the public offices have been designated and other lots have been sold to individuals.
    The plaintiff demurred to the return and the defendants joined in demurrer.
    Mr. Solicitor Merrimon in proper person.
    No counsel for defendants in this Court.
   Manly, J.

Upon the coining in of the answer to this writ,-there was. a demurrer and joinder in demurrer, so that the question brought here is upon the sufficiency of the answer. Its sufficiency depends upon whether the commissioners had authority to-make a conditional location; for if so, it seems to us their power would not be exhausted by such action, but upon the nonperformance of the condition, might be. resumed as an unfinished work; and so tóties quoties until a seat .of justice was finally provided.

The power of commissioners in such cases should receive ■ a practical construction; such as will meet emergencies likely to arise in the transaction of such business. It is of the nature of such a duty that it may meet with obstacles in the course of its performance, and the commissioners be obliged to retrace their steps' and try again in some other place and with some other parties. .

This was more probable, as, a different class of commissioners are appointed to fix the site and to acquire it. While the Legislature might not have been able to foresee the absurd stipulations- which did prevent the first attempt to locate, they must have been able to anticipate other similar obstacles, and when they provided two sets of commissioners, it could not have been intended that the designation of a place by the first, which is all they had to do, would fix it there irrevocably, and the commissioners of the second class would he obliged to make .the purchase, whatever .bad faith, imposition or • other obstacle, the proprietor of the land might interpose, unless the Legislature should convene in time to afford relief.

It must have been intended that the two classes of commissioners should act in concert, and, in our opinion, it was ’ not necessary that One set should exhaust its power, before the other could be called upon to move.

It was entirely competent and proper for the one set to say here is a proper site for the town, provided the other set can procure a surrender of the title in fee, and provided suitable town commons can also be procured. And upon a report back that such titles could not be had, the first commissioners could resume a duty not entirely or absolutely completed and perfect it. This reasoning, it seems to us, is analogous to that in the case of Caldwell vs. the Justice of Burke, 4 Jones, Eq. 323, on which this Court was conducted to a similar conclusion.

All provisions of law for the accomplishment of an object should be so construed and executed as to accomplish it, notwithstanding such obstacles and opposition as may be naturally expected to arise out of such affairs.

The report of the first class of commissioners as to the location, is referred to in the Answer, and speaks of the donations of lands by Coleman, Chambers, and Herbert, as understandings had with them, while the answer calls $hem conditions. We do not think this variance materially affects the case. The words in connexion with such a negotiation wore probably considered synonymous. They seem to have been so treated by the defendants, and no complaint is made of such construction.

From the nature of the transaction it must have been that the grants of land were- to be concurrent at least, with the final act of the commissioners, declaring the site fixed and their duty accomplished. A different construction would lead to the altogether inadmissible conclusion, that the Legislature intended to fix the site irrevocably, and' leave the public in the acquisition of it, to such exactions as the cupidity, whim or folly of owners might suggest.

Supposing the commissioners to select the site had a right to designate a place conditionally, there can be no redress under the present information. The conditions not being complied with, the commissioners have proceeded to select another place. The title has been acquired, temporary public buildings erected, the lands divided out into lots and •old, and the municipal machinery of the County, put into action. According to what is said in the case of the State upon the relation of Hill vs. Bonner, Busbee 257, the Court cannot revise . discretion of' the commissioners. It may be conceded that they ought to have selected the spot on Coleman’s land, but; not having done so, but passed on and made a different selection, the writ will not lie, because it would be but a command to make a different selection from the one which they had thought proper to adopt.

Upon the whole, we are of opinion that the commissioners to select a site for the public buildings for the County of Clay, could make a conditional selection without exhausting their power ; and upon the nonfullfilment of the conditions, might resume tlie power,and make another selectiou; and that a writ of mandamus, therefore, will not lie against the commissioners appointed to acquire title, commanding them to take a title to the place provisionally selected, although the owner may be now willing to waive former impediments.

The answer 'is held to be sufficient. The demurrer is overruled, and the information quashed.

Each party is to pay his own costs.  