Betts v. Raleigh.

55 S.E. 145, 142 N.C. 229, 1906 N.C. LEXIS 245

• Court: Supreme Court of North Carolina
• Decided: October 9, 1906
• Status: Published

Opinion

Be.owN, T.

It is contendéd by the defendant that the form of the petition presented to the Board of Aldermen is not in compliance with the act in that it fails to designate the questions which the petitioners desire to be voted upon at the election. In the view we take of the case it is unnecessary for us to pass on that contention. The writ of mandamus should have been denied for the reason that ■ it is never granted to compel an unlawful or prohibited act.

Tbe statute is express in terms and unmistakable'in meaning. Tbe election petitioned for is required to be beld in tbe same year in wbicb tbe petition is filed. It cannot be beld during tbe subsequent year. Tbe statute also prohibits tbe bolding of tbe election witbin ninety days of any city, county, or general election. These provisions of tbe statute are as binding upon tbe courts as upon any other departments of tbe State Government, and effectually bar tbe bolding of tbe election petitioned for. Tbe fact that tbe petitioners aver they were compelled to resort to legal proceedings to compel tbe defendants to order tbe election is immaterial. Had tbe mandamus proceedings been commenced much earlier, and before their final determination tbe obligation of defendants to perform tbe alleged duty required of them, or tbe right of tbe relator to exact its performance, expired by lapse of time, tbe relief will be denied, since courts will not grant tbe writ when, if granted, it would be fruitless, or require tbe performance of an illegal or prohibited act. High on Extraordinary Remedies, p. 20; Mauney v. Commissioners, 71 N. C., 486; Topping on Mandamus, p. 67.

Proceeding Dismissed.