28 S.C. 258 | S.C. | 1888
The opinion of the court was delivered by
The appellaut, on August 16, 1886, presented an account for audit to the county commissioners for Richland County, which was examined and disallowed. On September 19, 1887, he again presented the identical account to the board then in office, who refused to act upon it. In the mean time, and before it was presented the-sécond time, the members of the board in office at the time when first presented had gone out of office, and a new board, as to the members, had been elected; and it was to the board as constituted after the election, as stated above, that the account was presented the second time, when consideration was refused.
Upon this state of facts the petitioner applied for a writ of mandamus to his honor, Judge Witherspoon, below, who refused it. The ground upon Avhich the petitioner claimed the writ, was that the board had refused to consider his account, and he prayed the mandamus to compel, not its allowance, but its consideration, alleging that he had the right to have said account examined and passed upon, by either allowing or disallowing it; and that it was the duty of the board to take action one way or the other. The board made return to the rule, showing that the identical account mentioned in the petition had been presented by the petitioner to its predecessor on August 16, 1886, when it was examined and disallowed, as appeared upon the records of said board. And it was upon this ground that further action was refused.
Mandamus against a public officer is a proper proceeding,
We do not think that the petitioner had a clear legal right to have the second examination which he sought, such as is contemplated in the law, for the foundation of the extraordinary proceeding by mandamus. It appears from the return that while the commissioners did not go into the merits of the claim, they did examine it so far as to ascertain the fact that the identical account had been examined upon its merits by the board at a former meeting and had been disallowed, from which action there had been no appeal, and upon that ground they dismissed the petition, refusing to consider it upon its merits. If the board was bound to consider it a second time, with no new facts alleged, no after discovered testimony, on the ground of a legal right in the petitioner to have it thus reconsidered, we can see no reason why it should not be considered successively after each disallow
It is the judgment of this court, that the judgment of the Circuit Court be affirmed.