The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1868-11-14
op,nion Of Justice willard.

onipion Of Justice willard.
cu.mprRs SUPREME COURT, CHARLESIoN.
The State ex rel Acknowledgement vs.; tne rEes,t s
dent and Directors of the Bank OF tne sU s.aIe VI
South Carolins-Motion for Mandamus. Attorney
General and D. T. Coroin for the mohon; dayne'
Campbell Simons opposed
STATEMENT OF THE CASE.
The Attorney General has, IN behal1 OF tne
state filed suggestion, praying writ OF man
dnnpus to issue to the respondents, commanding
them to deliver to the Governor the assets = OF
the Bank Of the State, in accordance WITH ine
provisions of the act of the Legislature, enttieo
tsAn act to close the operations OF the BANK OF
the State of South Carolina" passed Septem-
her 18th. 1868. A rule to show cause has been
Granted, upon the return Of which the respon-
dents now appear to show cause Tor the dis-
charge Of the rule.
The first objection of the respondents is TO
the sufaciency Of suggestion to warrant ing
that thew stand before the court as private CIT
izens. and not as public officers, and that ior
that reason thcv are not amenable to the WHIT.
Thev also contend that the subject matter OF
the controversy is one to which the ~rlt ls IN
applicable.
MANpA1us LIES AGAINST PUBLIC SERVANTS.
The writ presupposes duty to be performed
In which the public are concerned; the respond,
ent must, therefore, be person capable Of
Issued to public officers, it equally extends
to any person, official or otherwise, Who may
owe q pubIic duty, and in respect thereof
stands in the relation OF public servant.
Chief Justice Marshall says. in Marbury vs.. Ma
olson Curtis SS4), 1T Is not oy the. omce . OF
by The nature Of the thing to be done that the
-ronr;atv M impropr1etv of issuing nlGndd-
mus is to bs determined" ~
BIackstone Is Bl. CON-, 110) enumeratts
among those to whom it issues persons" II
is not the design Of the writ to draw to the
court the official powers OF the respondent SO
that the court can perform what he has neg
iected. but 1t sets personally uoon- him, COM
nelline. bv personal pains and penalties, the
Performance Of O neglected duty. 1t Is as
much remedy against the person as an IN
dictment and action at law for Official mlsfea-
sInce. H.
president and directors a:o, in technical
sense public servants, although one branch OF
the Iee,slature so considered them; holding
them to be officers Contemplated by the con-
stitution as vacating the seat OF any. such
member Of the Legislature" dissolution OF
House of Representatives, September ID, 1918,
Bank Compln., p. 7Sl
MANDAMUs LIES TO COMPEL PUBLIC DUTIES.
The true question is whether the act re-
Iquirsd to be performed ls one tnat may DC
To establish claim to the writ the State
must establish prinaG fdcie clear right to de-
mand the performance OF some act, ana cor
responding specific duty on the part OF the re-
spondent to perform the same imposed by law
Marbury ys Madison, Curtis SS1; IN fbs ITS dis ns-
cretion of the respondent UNITED States vs..
Kendall, 12 Curtis, sS4), and that the public
are in some degree directly concerned IN the
performance Of such duty; also, that perform
ance has been demanded and refused, and that
no specific remedy exists for the enforcement
thereof tking vs. Barker, burT, Eel!. ...,,
Section 1 of the act Of September Is, set forth
by the suggestion, declares that "the Governor
OF the State is hereby authorized and required,
for and on behalf of the State, to take posses
sion Of all the real and persopal estate, assets,
chooses in action, anil books OF accounts OF the
corporation known as the President anu Direc- &c?
tors of the State Bank of South Carolina" in
whose hands soever found" 1t alleges . de-
mand on the part OF the Governor and refusal
of compliance on the part OF respondents. 1t
ia conceded by the return that there is proper
ty OF the description specified In the law IN the
hands of the respondents as officers OF the
bank. The requirements of the statute can
is delivered to the Governor, and hence it is
contended by the Attorney-General that
results BY necessary implication Of law
duty on the part Of the respondents to per.
form such act of the same obligation as If
commanded in express terms. Assuming that
the respondents have no personal interest In
the required act, but are to be regarded as
standing in the reIetion Of public servants to
the properly claimed--and such implication is
not onlr reasonable, out necessary to the
attainment Of the object of the statute-f
the Governor has clear legal right to take the
property, the Withholding it IS wrong, the
Essence OF which, in the case OF Pnonc ser,
want, is the failure OF official duty. NOT IS oI
importance that the respondents are not nam
ed in the statute as the holders OF the prop
ertv the Language Of the act, Gin whosesoever
hands found" being sufficiently descriptive to
depote the persons who sought to comply with
its requirements.
THE RESPONDENTS ARE PUBLIC SERVANTS.
It remains, therefore, to inquire whether the
RESPONDENTS are amenable to the laW IN tne
character Of public servants.
The Bank Of the State WAS created in 1872
as q corporation and body polite, to continue
uotl 1885, and has been continued under sub.
seouent statutes until the present time. II
was established ''in the name and in behalf OF
the State" Its capital was fund created
from the resources OF the State, guaranteed
against deficiency by pledge of the faith oi
the State. It was made bank o. OF loan,
incur obligations, and had the largest powers
to deal with property usually conferred upor
banking companies. It could sue and be sued
have corporate seal, make bylaws, ''and gene
rally to do and execute all and singular suct
matters and things which to them 1t shoulc
apperiain to d." The president and directors
we're chosen by the Legislature. The Stat
from time to time increased the resources o.
the bank by deposit subject to its draft, b9
moon which it was authorized to bank. ln al
dition to this all public officers holding pubic
monies was required to employ the bank a:
their place Of safekeepiug. The unaSpendee
balance remaining in the Treasury OF the Stat' t.t
at the end of any fiscal year was placed 70 " en
credit Of the capital Of the bank. Inc prontS
were in 1921 created fund fot the redemption
OF the State six per cent. stocks.
The Legislature from time to time passeS
laws controlling the institution, clearly eX
pressve of relation more intimate than tina
which usually subsists between banking cor
porations and the Legislative authority.
It is obvious that the bank was create(
for the use OF the State, purely pubic
purpose, and that the Sta.e intended to re:ain
and did in fact retain, over the institution th'
fullest control capable of being exercised owe
corporate institution, o power that necessarl
ly resulted from the cession to the State OF a.
elements Of public authority and those apper
tanning to the ownership OF the stock OF suct