The opinion
Brogden, J.
The question of law involved is the power of the purchasing agent of Surry County to appoint a road superintendent without the approval of the board of county commissioners.
■Therefore, at the outset, the inquiry arises as to whether the remedy applicable to the facts is injunction or
quo warranto.
If
quo warranto
is the sole remedy, then the plaintiff cannot maintain this action. The applicability of the remedy of
quo warranto
depends upon whether or not the road superintendent of Surry County is an officer as contemplated and defined by law. This question is discussed in
Eliason v. Colerman,
86 N. C., 236 , and by McIntosh’s North Carolina Practice and Procedure, section 964, page 1089, and cases cited in support of the text.
Chapter 235, Public-Local Laws of 1919, creating a highway commission for Surry County, authorizes said commission, in its discretion, to employ a road superintendent and such subordinates as may be necessary, and to delegate to him or such subordinates such power as the commission in its discretion may deem wise or expedient. In section 9 of the act it is provided that the commission “through its agent” is authorized to enter upon land, etc. In section 10 it is provided that any person who shall obstruct “the said commission, its agents or employees in making surveys or changing any road,” etc., shall be guilty of a misdemeanor. Thus it appears that the General Assembly con
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templated that persons employed by the highway commission of Surry County should be deemed to be agents and employees. These positive legislative declarations exclude the idea that the road superintendent was an officer as contemplated by law. Therefore, the plaintiff was not required to resort to'
quo warranto
in order to maintain an action against the defendant.
The board of county commissioners directed the purchasing agent to recommend a qualified person for the position of road superintendent. None of the legislative acts referred to undertake to abolish the board of county commissioners or to deprive said board of the power to discharge the duties imposed upon it by law. Nor does chapter 167, Public-Local Laws of 1927, when read and construed in connection with section 6, chapter 141, Public-Local Laws of 1925, subordinate the board of county commissioners to the control of the purchasing agent with reference to the employment of a superintendent of roads.
Affirmed.