The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1869-01-09

necessary implication, as strenuously con
tended for on their behalf. But II not neces
sary, may it not be reasonable i'm nPlication
This question opens wide range Of consider
atoms. and enables US to determine whether
the enlarged powers contendcd for are withir
the spirit and inteut OF the statute, If not in it:
terms. 1t is an obvious rule of construction
that that which is unreasonable IN itself can
not be the subject of reasonable lmpllca
ton. Nothing is more unreasonable tian tina
tho Acting Board OF Aldermen, having an in.
erest in this question: as they setah ha Sne ad
should be invested with tho power OF judicaly
deciding tho case. But it is saidthat the Office
of alderman is one OF honor, and not OF enolu'
ment! A desire for honors may have as corrupt
ing an influence on the judicial mind as that for
emoiument. en- in We cannot do violence to the
yery principle of judicial purity in order to
enlargo the powers of The respondents, OF
ascr1be any such intent to the Legislature.
The powers of the respondents are limited to
O. legal declaration Of. the election, and so
much Of their return as is correct by their de-
rlurrer is insufficient as In answer to that part
| OF the mandate OF the writ that requires a
declaration of the election. The only view in
which the relevancy OF The residue OF the. re-
turn can be supported is, that this court can
| in the present form OF proceeding determine
q matter of fact-the validity OF the election.
We are satisfied that this question is not pre-
perly before us. If tho return had under
in fact taken place, that could have
raised an issue on which their duty
to declare the election depended; but the
return only goes to the extent OF denying the
legal validity of the eiection-a fact altogether
unimportant, so far as their duty Is concerned.
The respondents may have supposed from
the concluding clause of the command OF The
| ,,,.;t 6irnnfS the rnSnOn-
dents to allow the REALTORS to take possession
of the offices to which they make claim, that
the entire question ofthc right OF the REALTORS
to the offices in question was at lssue on this
record, and that, therefore. it vas necessary
to put in issue the validity Of the election; but
a careful examination OF the frame Oh the VIII
shows that such issues are not pertinent.
| The theory of the writ is, that something is
| lacking to enable the REALTORS 10 prosecute
any claim they may have acquired by the cleo
| ton to the offices namely, o declaration OF The
results thereof. Hence the necessity for apply
ing for mandate to compel the performance OF
that official act, without which the right to the
Office is inchoate. That portion OF the man
date that relates to the declaration OF the elec-
tiop, must be regarded as fixing the character
| of the proceedings and the issues triablo un-
der 1t. and the residue must be regarded mere
Iv as Intended to enlarge the scope OF the re-
| lief in tho contingencies OF declaration OF
the election favorable to the claims OF the re-
lators. In this respect the mandate is o6jec.
tionable, as 1t seeks to carry the remedial aid
of the court beyond the case made by The
pleadinc. It is clear that il the case is in o
position to enable the court TO ascertain finally
the rights of the contestants in respect to the
officers, then it would be idlo to require
declaration of the election, TO- nothing
would be left dependent Oh such declaration.
But the theory of the writ contrad,cts such
md (lpclnr,tl0n
is necessary as condition precedent to any
contest Involving tho question OF right to ill
the Offices. Tint portion Of the return covered
by tho motion to strike ont is, therefore, lrrcl-
evant to the true issues OF tho case, and may be
disregarded. 1t has been urged in behalf OF
the respondents that the peremptory writ must
issue in the terms OF the alternative, or not at
all, and that as it cannot so issue the proceed
ing must be quashed It is true that the Pc
remptory writ calInot issue in the exact terms
of tho alternative, as we have already seen.
Can 1t, then issue at all2 1t was held, in the
King vs.. 1t. Pancreas (3 Ad. Ellis, 5S5), and in
Regiua vs. 1.-THE Commissioners (l4 Adol. o.
Ell, U. S., 459). that the peremptory writ
must conform exactly 10 the alternRtiye, and
that the court could not mould the writ, though
it 1nny the rule TO show cause. This strict
ness resulted from the notion that this pre-
cceding did not partake Of the characteristics
of the formal remedies afforded at common
law, but was q resort to kingly prerogauVe
because OF failure Of justice. This netion
has not been received in this country; but the
,oru of n1anddn,us has been treated as form
inc no exception to the rules governing ordi-
nary remedies. In the case OF People vs..
Thorpe l12 VOL, 1877 peremptory naandamus
was allowed IN return to O writ to rule to
show cause without waiting to issue an alter
native, and the reator was permitted to COM
plete the introduction Of an alternative writ
l. nIs., 0,r1lty oil yfyfy10
greater latitude than that Of amend
ment limiting the sphere of the man
date. Toe iiberality with which amend
mouts are allowed, ls well stated by Judge
Earle in Bank OF Pennsylvania vs. Condy (Hlll
Law. 109 The learned Judge says: 1.-The
ancient rigor on the subjects OF amendments
has been greatly abated, a. well by the liberal
and enlightened practice of the courts in mod,
ern times, as by statute. 1t is the constant
practice here to amend proceedings in any Pc
riod of their progress, to preserve tho symme-
try and to make theuI conformab!e II anything
appear by which tho amendment can be pur-
sued. Writs, declarations, judgments and ex-
ecutions can be on any day amended up to the
time Of finil satisfaction, and there can 90 no
reason why O verdict should not be also"
This reasonable practice is applicable to MN
d1naus The objection or the respondents re-
lates to ''symmetry" and conformity" alone,
and concerns no substantial right.
We find in this case returI and decision
giving definite mould to tho pro :eeding and
forming ample ground to amend by, and we do
not feel at liberty to disregard the great and
humane doctrlue OF amendment now gsacrally
precedent, in order to cngraft upon tho prac-
tlco in this very important department OF re-
lnodia justice the rigidity practlced III earlier
tim. s.
The REALTORS will be permitted to amend their
alternative writ in conformity with the fore
going; and upon such amendment a perempto-
ry 1ndRddmuS will issue, CONT nmandlnS the re-
spondents to declare the election.
OPINION OF THE CHIEF JUSTICE.
Chief Justice Moses then read the following
separate opinion:
Tho State e1 rel Gilbert Pil!sbury vs.. the acting
Supreme Court.
Moses. q. J. (ssparate opinion).
co 1cur in the result OF the opinion pronounced
by The lea rnel associate, do not doslre to be
understood as committed to all which it con-
tans, as leading to tho conclusion 10 which
the court has arrived. Ii l regarded the
statute comforting on the Board of Aldermen
tue s'power to examine tho returns and The
ballots, and investigate tho case, as imposing
tllo authority s;to hear and determine"
would not feel warranted in granting the
n,qnolqnus merely because they had failed to
declare the election. The obligation 10 hear
and determine involved the right to consilcr
aud dispose ofby judgment-the determination
consequent OIL the hearing to be carried out by
iudcm.nt, which implies decision.
In the King va. LoXlatle, CT al, Burr l, lat,