The opinion
Douglas, L,
concurring. I concur in tbe opinion of tbe Court as written by Justice Connor, on tbe ground that it does not appear to me that tbe Legislature intended to create a divided sovereignty, or imperium in imperio, within tbe town of Waynesville. My opinion is based entirely upon tbe intention of tbe Legislature, and not upon its power. A different interpretation might raise serious constitutional questions. Tbe power of tbe Legislature to grant charters to cities and towns, and to modify or repeal them at its pleasure, within constitutional limitations, is not questioned; but to what extent it can directly interfere in their management and control, is another and more doubtful question. . While concurring in tbe opinion of tbe Court, not only in wbat it says but also in its wisely refraining from discussing questions whose determination is not necessary to tbe decision of this ease, I am nevertheless impressed with tbe suggestive nature of tbe opinion of tbe Chief Justice. Speaking solely for myself in a concurring opinion, I may go further and express my personal views. It seems to me that tbe town of Waynesville is a proper party to this case, and is actually and in good faith asserting its right to tbe location and improvement of its streets. But if it were a mere nominal party, wbat difference would it make ? If tbe road commissioners of Waynesville township have no power to open new *238 streets within the limits of the town, I see no reason why they cannot be enjoined by any one who would be injured thereby. Here the private right of the citizen would apparently end. I see no ground on which either he or the town itself would be entitled tQ.a mandamus to compel the township commissioners to macadamize any of the existing streets; certainly not under the facts shown in this case. The Legislature evidently intended a part of the fund to be spent within the corporate limits, and probably expected that it could and would be done by the concurrent and harmonious action of both boards. The unexpected dispute destroyed only in part the effective operation of the act, which otherwise remains in full force and effect. There is no reason why the township board should not proceed to improve the roads outside the town limits, reserving perhaps sufficient funds for the improvement of the road within the town when its location is finally determined While they cannot control the town authorities, they are equally independent in the exercise of their own duties, privileges and powers. There is no apparent reason why the two boards could not, acting concurrently, open and improve the new street as proposed. It is not proposed to close up any part of the old street, or to deprive its abutting owners of any of the rights or conveniences they now enjoy. This is all they can demand. They have a right to have the old street kept open .as far as it is necessary to the reasonable enjoyment of their property, and to have it kept in proper repair as a public highway. This would be a continuing duty of the town commissioners, and for failure in its performance they would be indictable under State v. Dickson, 124 N. C., 871 . As was said in that case: “What is proper repair would depend largely upon circumstances, such as the size of the town and its available funds, the character and location of the streets, and the amount of travel thereon.” I am not aware of *239 either statute or decision entitling an abutting owner to have Ms street paved or macadamized to the conclusion of others. If the public interest, on account either of convenience or economy, requires the opening of a new street, then it should be opened, but by the proper authority.
It is true that the opening of new streets often disturbs the relative values of property, but this cannot be avoided, and it is never a legal injury if done in good faith and for a public purpose. Of course, if the town authorities were to use the public moneys merely under a colorable pretense of public necessity, but in fact to subserve some private interest, they could be enjoined, if indeed they did not become criminally as well as civilly liable. There is no intimation of any such purpose'in the case at bar. On the contrary, the undisputed testimony tends to show that the new street was located in good faith and in furtherance of the public interest and convenience. A city can no more be confined to its village streets than a man to the clothing of his infancy. As it grows it expands, and needs new and more convenient lines of communication. The country road, originally its principal and perhaps its only street, becomes inadequate to the needs of its growing population; and is rarely susceptible of substantial improvement. It cannot be abandoned, but neither can it be justly given a fictitious value at the expense of the general public.