State v. Mayor of New Castle

18 Del. 466 | Del. Super. Ct. | 1900

Boyce, J.:

This was a motion to quash the rule to show cause why a mandamus should not issue, and to dismiss the petition.

Mandamus is a prerogative writ, and may be withheld or granted by the Court in the exercise of a reasonable discretion. If upon an application for the writ, a reasonable doubt exists, such as controls the judgment of the Court, it will be refused.

In considering this application, we are confronted with a provision in the City Charter which makes the denial of the writ incumbent upon us. “No tax herein provided for shall be collected after the expiration of one year from the date of the warrant or precept for the collection of the same,” is the language of the statute. And the tax for the enforcement of the collection of which the writ is sought, was levied and assessed, and the warrant for the collection of the same was delivered to the collector, more than one year ago. And it is therefore now beyond the power of the collector to collect the same by process of law.

There seems to be no dissent from the proposition that the law will not attempt to enforce a person to do a thing which by law it is impossible for him to do.

Our courts have decided that the writ will not be awarded when, if granted, it would prove nugatory and unavailing.

Lurty vs. Hardcastle, et al., 1 Marvel, 476; McCoy, et al., vs. State ex. rel. Allee, et al., 2 Marvel, 573.

Rule discharged and petition dismissed with costs.