Opinion
June Term, 1876.
Municipal Corporation — Mandamus.
The proper judgment in an action against a city or town, upon a recovery for necessary expenses, is an alternative, and not a peremptory, mandamus.
(The other points decided are the same as those in Tucker v. Raleigh, ante, 267.)
APPEAL from Watts, J., at January Term, 1876, of WAKE.
The same points were involved in Tucker v. Raleigh, ante, 267.
There was judgment in favor of the plaintiff according to the prayer of the complaint, and the defendant appealed.
Busbee Busbee for appellant.
Haywood, Fowle and Snow, contra.
The only point in this case is covered by Tucker v. Raleigh, at this term. It is there decided that the Funding Act of February, 1875, did not require the sanction of the popular vote.
We think, however, that the judgment ought to have been an alternative mandamus, as the city may show cause, as that it prefers to pay the debt rather than fund, etc.
PER CURIAM. Judgment accordingly.
Cited: Mayo v. Comrs., 122 N.C. 22; Wadsworth v. Concord, 133 N.C. 593; Water Co. v. Trustees, 151 N.C. 175.
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