18 S.D. 388 | S.D. | 1904
An amended alternative writ of mandamus having been issued by the circuit court commanding defendants Boyden, Campbell and Peters, as commissioners, the board of county commissioners, and Van Der Voort, as auditor of Charles Mix county, to at once amend the records of the January, 1904, session of the board, pertaining to a petition alleged to have been presented to the board relative to the location of the county seat in said county, “so as to show that on the 6th day of January, 1904, the said county board, after investigation of said petition of the relator and 1,525 others, did make and find that said petition contained the names of 1,506 legal voters of said county at that time, and that said number of 1,506 legal voters was a legal majority of all the legal voters of said county at said time, ” or to show cause at a time and place specified therein why they should not so amend such records, defendants Campbell and Peters, a majority of the commissioners, appeared and moved to quash the amended writ. This appeal is from an order overruling such motion and directing the entry of a judgment awarding a peremptory writ as prayed by the plaintiff.
The only assignment of error is that the court erred in overruling appellants’ motion, and the only ground of such motion relied on in this court is that the amended alternative writ does not state facts sufficient to entitle the plaintiff to any relief. For the purposes of the motion and this appeal, the
The contention that, notwithstanding it was the duty of the board to record its decision, the order appealed from should be reversed because no substantial benefits will result from the contemplated amendment, is not tenable. Undoubtedly, the issuance of a writ of mandamus is largely within the discretion of the court to which application is made, and is not always a matter of right. 13 Ency. PL & Pr. 598. But the same discretion is invoked and exercised when the writ is granted $s when it is refused, and when it clearly appears that an official duty has not been performed an order granting the writ should not be reversed in the absence of manifest abuse of this discretion. When a court is satisfied that no substantial benefits can result, it is certainly justified in declining to issue the writ; but when doubt exists as to its effect, and it appears that an official duty has not been performed, there is no abuse of discretion in compelling the performance of such duty. In the case at bar, while the defendants cannot be injured, the relator may be benefitted by the order of the circuit court. What the records of the board will show when amended does not appear. Whether the entire'proceedings of the board at the January,
The order appealed from is affirmed.