41 S.C. 29 | S.C. | 1894
The opinion of the court was delivered by
The relator applied to Judge Gary for a writ of prohibition to be directed to the respondents, as members of the County Board of Control for Richland County, prohibiting them and every of them, and all others acting under their authority, from receiving or filing any bond by J. M. Roach as dispenser for the.eity of Columbia, in said county, and from issuing him any permit authorizing him to keep and sell intoxicating liquors, and that such respondents shonld utterly desist in every such matter.
The grounds recited in the relator’s petition, whereby he conveyed his application for said writ, were substantially these: That the relator is a freehold voter and taxpayer resident in said city, and presents his petition in behalf of himself and other citizens, who are in a similar plight as himself; that the State Board of Control, composed of the Governor of the State, the Comptroller General, and Attorney General, also of the State, as provided by the act of the General Assembly of the said State, entitled “An act to prohibit the manufacture and sale of intoxicating liquors as a beverage within this State, except as herein'provided,” app)roved 24th day of December, 1892, on a day not stated in the year 1893, had appointed the respondents as the County Board of Control for Richland County, and that such respondents had entered upon the discharge of the duties pertaining to their respective appointments, and of whom J. M. Kirkland is the chairman of said board; that, by section 8 of said act, there may.be appointed by such County Boards of Control one dispenser for each county, except that Charleston may have ten and Richland three, but that a petition for such appointment must be made to be signed by a majority of the freehold voters of the incorporated city or town where it is desired such dispensers to be appointed; and each person who signs said petition shall sign the same in his own true name and signature, and shall state that, before signing, he has read the petition and understands its contents; and that before the County Board of Control shall
That J. M. Roach, an applicant for the position of county dispenser at the city of Columbia for Richland County, on the day of June, 1893, filed with said County Board of Control for said county his petition signed by 190 signers, and this was the only petition filed by the said Roach in support of his application; and the said County Board of Control had, according to the provisions of said act, no jurisdiction to grant the application of said Roach unless said petition for his appointment had been signed, in accordance with the provisions of said act, by a majority of the freehold voters of the city of Columbia, and unless- a copy of said petition had been filed with the Clerk of the Circuit Court for said county, as required by said act; that the petition in question is not signed by a majority of the freehold voters of the said city of Columbia; that the highest number of which 190 is a majority is 379, and the number of the freehold voters of the city of Columbia is
That while the relator admits that such County Board of Control did receive the information from L. B. Folk that such Roach’s petition contained 196 names of freehold voters of said city, still he informs the court that such number (196) of names did not appear upon the petition filed by Roach with the board, but was supplied by names of freehold voters who did not comply with the act, and which said County Board of Control had no jurisdiction to consider; that four of said Roach’s petitions with sixty-eight signatures read thus: We the undersigned respectfully recommend J. M. Roach as a suitable person for county dispenser under the act of 24th December, 1892; that to the petition which had 190 signers, H. Jones, one thereof,
That Mr. L. D. Childs, who is opposed to the establishment of said dispensary, and while representing a large number of the freehold voters of the city likewise opposed to it, asked the three members of said County Board of Control to be allowed to be heard by said board, either in person or by letter, in order to lay before them evidence that there was a very considerable number of freehold voters not embraced in the list furnished by the said county auditor, and that this application was not granted; the said County Board of Control wilfully assumed a jurisdiction not conferred upon them by the act, and acted in excess of their powers; that said County Board of Control, unless restrained by this honorable court, will proceed, under the usurped jurisdiction by them exercised, to file and approve Roach’s bond as dispenser as aforesaid, and issue the permit to sell intoxicating liquors under the act in question.
Upon hearing the verified petition, the Circuit Judge passed an order requiring the said County Board of Control to show cause before him, on 11th July, 1893, why the writ of prohibition prayed for should not issue in accordance with the prayer
From this order the relator now appeals on seven grounds: 1. In allowing an oral demurrer to be interposed, and in hearing and determining the same. 2. In deciding that the Court of Common Pleas, or a judge thereof, did not have jurisdiction in the premises. 3. In sustaining the oral demurrer. 4. In ordering the restraining order to be vacated. 5. In not overruling the oral demurrer. 6. In not requiring the return to the rule to show cause to be made. 7. In not granting the prohibition.
It may not be assumed that such writ will lie to restrain a County Board of Control within the limits of the jurisdiction with which they are clothed under the act of 1892, relating to dispensaries. By referring to the petition of relator it will be seen that it is there alleged that the act of 1892 expressly conferred jurisdiction upon this County Board of Control to determine when a petitioner for appointment as a dispenser had complied with the law by first obtaining a majority of the freehold voters of the city to the petition for his appointment, when he had produced a satisfactory bond, and that such appointment as dispenser is within the discretion of the County Board of Control. There can be no denial that the act in question has clothed the county board with jurisdiction to hear and determine this application for appointment as dispenser. And it nowhere appears amongst the statement of facts set forth in the petition, of relator that such County Board of Control is assuming to hear and determine any collateral proceeding of any character whatsoever disconnected with the appointment of a dispenser. It must be remembered that the object of this writ is to restrain the respondents within their appropriate jurisdiction. Of course, this can be done only when the respondents are outside their jurisdiction. This writ has no application to any errors of law or fact committed within their jurisdiction by this County Board of Control. We can very well see that errors both of law and fact may be committed by such a board when acting upon matters within its jurisdiction, just as frequently happens in other inferior judicial tribunals. But the writ of prohibition does not lie in such a case. In just such cases the writ of certiorari is applicable. We do not know that any more extended notice of this appeal is required, and inasmuch as we see no error in the Circuit Judge’s order,
It is the judgment of this court, that the judgment of the Circuit Court be affirmed.