Runion v. Latimer

6 S.C. 126 | S.C. | 1875

The opinion of the Court was delivered by

Willard, A. J.

The most important function of the writ of mandamus is to compel the performance of acts of official duty in which the public are directly interested. In this class of cases, the relator proceeds on the right of the State, which has not merely a nominal but a substantial interest.

The maintenance'of activity and life in every part of the body-politic is a primary duty imposed upon governments; and it is essential to its attainment that all public functions should he performed with regularity and exactness. The writ of mandamus issuing out of the Courts of common law is'the proper remedy to enforce the performance of such official acts as are of absolute obligation upon the officers called upon to perform them, and are essential to a. due administration of the government, when performance has been improperly refused.

Rot only public officers, duly and rightfully exercising the powers incident to the offices held by them, may be compelled by the writ of mandamus to perform such official, acts, but persons exercising the powers of such offices, though not rightfully holding the same, may be so compelled. This results from a familiar principle, that one unlawfully assuming an agency, either public or private, may be held to all the responsibilities incident to such agency while in the actual exercise of the same.

The application of these familiar principles to the present case leads to the conclusion that the peremptory writ was properly issued in the present case. What the respondent alleges as justification for his conduct involves a claim to the office of County Treasurer and rightful action under that claim.

It is not necessary for us to consider the conflicting claims of the relator and respondent to the office of County Treasurer. It appears by the facts stated in the petition, and not contradicted by the return, that the relator was actually in possession of the office of County Treasurer, and possessed of the “ tax duplicate,” which is a record of the taxes imposed within the County, and a necessary warrant in the hands of the collector; that the respondent, claiming to be rightfully County Treasurer, took the book in question from the office of the relator, unlawfully and clandestinely entering the same, in the absence of the relator, for that purpose. The relator now demands its return. The mode of obtaining possession of the book was a wrong, and his possession of the record cannot be regarded as offering evidence of his actual possession of the office. The book must still be regarded as of right in the custody and control of the relator, who, as he also holds the evidence of appointment to the office by due authority, must be regarded as prima fade entitled to the office and all matters incident thereto.

We are not called upon, in the present case, to decide whether a question of title to public office can properly be considered in this proceeding by mandamus. It certainly cannot where the ordinary remedy, by an action in the nature of quo warranto, affords an adequate remedy, nor in a case where the ground of complaint arises out of the illegal and wrongful misconduct of the part}' tendering the issue, based upon a question of title to office. The present case belongs to the class just named. The respondent has an adequate remedy by action for any right that he may possess. At all events, he has, by his own wrong, deprived the relator of the record which it is the whole object of the present proceeding to-have returned to his possession, and the respondent cannot interpose a question of title between the wrong that he has committed and its proper legal remedy.

The writ should have been Entitled in the name of the State.' Had this objection been raised, either by motion previous to a return or by the return, it would have been necessary for the-relator to have amended the title of his proceeding. But it does not appear that such objection was raised by the return or in any antecedent proceeding. The Circuit Court may at any time amend the proceeding as to a matter of form.

The appeal should be dismissed.,

Moses, C. J., and Wright, A. J., concurred.