Wilson v. Cox

53 S.E. 613, 73 S.C. 398, 1906 S.C. LEXIS 196

• Court: Supreme Court of South Carolina
• Decided: March 1, 1906
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. Justice Gary.

This was an application to Mr. Chief Justice Pope, and by consent heard by this Court in the exercise of its original jurisdiction, for a writ of mandamus requiring the respondents, who were the members of the county boards of control and the dispenser of Pickens County, to open and operate the dispensary at Pickens. The petition alleges that the respondents, on the 19th of June, 1905, unlawfully closed the said dispensary, and refused to open and operate the same. That there is no other dispensary in said town and county, and by said illegal action, the petitioner and other citizens are deprived of their right and privilege to purchase alcoholic liquors at said dispensary. The petition does not set forth the facts which render the closing of the dispensary illegal. A rule was issued requiring the respondents to show cause why the prayer of the petition should not be granted. They made a return setting forth the various proceedings which resulted in an election against the dispensary and the closing of the same.

The relator filed a reply to the return, alleging numerous grounds of illegality in the election, and that the statute commonly known as the Brice Act was unconstitutional. The last mentioned ground was, however,' abandoned.

A special referee fook the testimony, and reported his findings of fact as to the several steps in the said election, which, at least in the main, showed that it was valid.

1 The first question for consideration is whether proceedings by mandamus are the appropriate remedy. The office of the writ of mandamus is thus well expressed by Mr. Justice White, in the case of International Cont. Co. v. Lamont, 155 U. S., 303-308: “It is elementary law that mandamus will only lie h> enforce a ministerial duty, as contradistinguished from a duty which is only discretionary. * * * Moreover, the obligation must be both peremptory and plainly defined. The law must not only authorize the act (Commonwealth v. Boutwell, 13 Wall., 526), but it must require the act to be done. ‘A mandamus will not lie against the secretary of the treasury unless the laws require him to do what he is asked in the petition to be made to- do.’ Reeside v. Walker, 11 How., 272; see, also, Secretary v. McGarrahan, 9 Wall., 298, and the duty must be ‘clear and indisputable.’ Knox County Commissioners v. Aspinwall, 24 How., 376.” This language is- quoted with approval in Lord v. Bates, 48 S. C., 95, 26 S. E., 213.

Before the Court could issue the writ of mandamus, it would be necessary for it to declare the election null and void by reason of the various- acts of alleged illegality.

It cannot be successfully contended that the duty o-f the respondents is ministerial, or clear and indisputable, when the law forbids the operation of the dispensary unless- the election should be set aside.

The judgment dismissing the petition has already been filed.