Manor v. McCall

5 Ga. 522

• Court: Supreme Court of Georgia
• Decided: November 15, 1848
• Docket: No. 59
• Status: Published

Opinion

By the Court.

Lumpkín, J.

delivering the opinion.

There are two questions presented by the record in this, case.

1st. Have the relators such legal right in the matter, as to eiititle them to the remedy which they seek 1

And 2d. Will the Superior Court control by mandamus, the discretion of the Inferior Court of Scriven county, in the case.

[1.] The first question is readily solved, by reference to the Statute of 1847. (Pamphlet Acts, p. 74.) This Act was passed, as its title shows, “ to establish and make permanent the new county site,” “to provide for building a Court-House and county Jail thereon,” and “ to appoint” the relators “ commissioners, to carry the same into effect, and to provide for the payment of all necessary expenses.” It is apparent, therefore, that the trust .delegated by the Legislature to these agents, extended to the very subject in controversy, tc-wit: the providing of the necessary funds for the erection of the now Court-House and Jail, at Sylvania, and that it continued until this object was accomplished ; consequently, the relators had such a legal interest in this matter as to authorize them to apply for this only adequate and appropriate remedy to enforce it.

[2.] The doctrine as to discretion is well defined, and seems to be this: A Superior Court will not undertake to regulate and control a discretion in the inferior judicatory, which is not, and cannot be governed by any fixed principles or rule. The People vs. the Superior Court of New York, 5 Wend. 114. For instance, if the law creates an office, and directs the Inferior Court to allow to the incumbent, such compensation as they shall judge reasonable and right, the Superior Court would not interfere, unless the discretion conferred in this case was grossly abused. So in the granting of licenses by the Inferior Court, opening roads, &c. So in the granting or refusing of a new trial, on the giound that the verdict was contrary to evidence. In this class of cases, the Inferior Court will be required to act, but it will not be coerced as to the mode or manner of its action.

' [3.] But where the law imposes a specific duty, a mandamus will be awarded against the subordinate Court, to compel its performance. Hull vs. Supervisors of Oneida, 19 John. 259. The People vs. Superior Court of New York, 5 Wend. 114. Ex parte Bailey, 2 Cowen, 479. Bright vs. The Supervisors of Chenango, 18 John. 241. Commissioners vs. Lynch, 2 McCord, 170. Shoolbred vs. Corporation of Charleston, 2 Bay, 63. Commonwealth vs. Johnson, 2 Binney, 275. 2 Hen. & Mun. 132. County of Boone vs. Todd, 3 Missouri, 140. People vs. The Superior Court, 10 Wend. 285. 18 Wend. 534. Wright, 353.

It only remains to apply these p dumpies to the case before us. The 5th section of the Act already referred to, provides, “that the Justices of the Inferior Court of deriven, shall, on he second Monday in January, or at any time thereafter, before the first Monday in May, 1848,. levy an extraordinary tax, not ex" ceeding fifty per cent, on the State tax, for the purpose of paying the expenses already necessarily incurred by the said, commissioners, in and about the defining of the centre of said county, for the purchase of said land, and for advertising in the public Gazettes, as also for the purpose of paying for the building of a Court-House and Jail, at the new county site.”

The relators subínitted a report to the Inferior Court, in April, 1848, by which it appeared, that after applying the proceeds of the public lots at the new county site, and the old Court-House, Jail, and lots at Jacksonboro’, amounting to $972 75, it left a deficiency of $1,162 62, which it would be necessary to raise, by an extra-tax, to pay for the new buildings. And we believe that this sum fixed the discretion of the Court. They could not, it is true, exceed fifty per cent, on the State tax. They were bound, however, to execute the power conferred on them by the Legislature to that extent, provided it was necessary to raise the $1,162 62, and the report of the relators shows that the whole was needed. To levy a tax, therefore, of five per cent, only, was an evasion of their duty. The mandate of the law was imperative, and they had no option. And it is no sufficient excuse to say,‘ that the report of the relators failed to show when the money was needed by the contract. The 5th section of the Act peremptorily exacted the imposition of this extra tax, “on the second Monday in January, or any time thereafter, before the first Monday in May, 1848.” The Act may have been rashly or precipitately passed, still it must be enforced.

The General Assembly has seen fit to take from the Inferior Court, as it had the right to do in this case, its ordinary jurisdiction over these county matters, and confer it on particular individuals. For its proper exercise, these agents of the public pro hac vice, are answerable to the State, and to public opinion. See Commonwealth vs. Johnson, 2 Bin. 279.

The judgment below must therefore be affirmed.