The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1869-03-25
MANDAMUN.
Opinion of Hon. n. B. Carpenter, State
Circuit Judge, Qua shIng tho Writ.

M4NDAMUS.
Opt MON OF Hon. n. B. Carponter, state
Circuit Judge, Quashing the Writ.
THE STATE Ex. REL. GILBERT PILLsBURY, EFT AL VS.
THE ACTING MAYOR AND ALDERMEN OF CITY OF
CHARLESTON THE COMMON PLEAS,
CHARLESTON COUNTY. f|
In this case an alternative ndndamus issued
out OF this court directed to the Acting Mayor and
Aldermen Of the City of Charleston commanding
them to turn all the property, books and papers
pertaining to their several respective Offices to he Pc
tidoners therein named and to vacate and surren-
offices, to appear b. fore this court Friday, the
10th day Of March instant and chow cause why they
In answer to this writ the respondents do certify
and declare unto the courv ''that they do not sur
aforesaid, because they say that they in posses
sion of said offices. having been admitted and sworn
that "damus is not therefore, the proper remedy
Of the petitioners"
The respondents, in further answer to the said
writ, set forth the title under which they claim to
hold their respecs Offices; they traverse the seve
raj allegations made by the petitioners the grounds
upon which they entitled to the writ, and which
are lected in the alternative writ; and they fur
ther aver that the act Of the Legislature, ratified
on the ist gay OF Msrsn, instant under the prov.
to these offices, is in violation of chartered rights
of the corporators Of the CITY, and also of the Con-
several particulars, and therefore imperative and
void. Upon the nling of this return the petition
ers' counsel asked for time to plead, which was
granted.
The petitioners then Aled general demurrer to
return which are properly pleaded, and would seem
e nrt II iasne the suactepcy In law Of their cause
shown by them for not obeying the mandate Of the
writ, but at the hearing the argument was conAned
to the question made in the frst section Of the &C.
spondents return-is nand0mus the proper remedy
for the petitioners The other questions raised in
the respondents' return were waived nor were they
admitted; but the same questions had be made
Il a ia
respondents issued and returnable at the same
time and at the instance Of tho same relators, which
was set down for hearing at later day, the argu-
ment was not had upon these questions, but re-
served until the hearing of the quo searranto.
The question discussed at bar, and to be deci-
ded, is marrow and formal one, and does not go to
the merits of the case.
1t is not disputed that ,aandam.us is the proper
remedy against public officer. who neglects or
fuses to do some duty which the law enjoins upon
him, and in which the petitioner or relator has an
In and right to have done and where there
| Is no other remedy which is full appropriate and
adequate. The question is whether this is such a
case. On the part of the respondents it is contend
ed that 1t is not. because they in possession Of
the offices which the writ commands thena to vacate
10 dns a
is upon an infermatio in the nature of gu, soar-
rant0, in which their title will be put in question,
and upon which the judgment is OF custer from tho
Offices beld by them; and that this remedy has
been. already granted to the petitioners by this
that it is the duty OF the respondents required Of
them by law. to vaeate their Offices and surrender
them TO the petitioners-and that they can never
obtain possession of these Offices, even il there
should be judgment Of custer upon the quo soar-
ronto, except by saandamss. which is the only ade-
quate, therefore the proper remedy.
The books speak Of 4nandamus as used to admit or
restore to an oface; but 1t must be borne in mind
that when used for this purpose it is directed to
officer or officers whose duty it is to admit to the
Office claimed by the petitioner. The writ itself as
sumes the person to whom it is directed to be an
officer, and to continue in Office in order to perform
the duty required of him.
But when the Office sought Is hlled by one claim.
for one claiming againet the incumbent. In such q
the claimant entitled to the relief Of the court
must obtain It through a quo 'oarranto.
To illustrate this distinction in the present case If
the Acting Mayor and Aldermen of Charleston should
refuse to allow one to exercise q public Office to
which he had been elec.ed by them he would, upon
proper case made. be entitled to mandansu com
manding them TO admit him; but where the peti.
TONERS seek for themselves tue Offices of which the
Acting Board in possession, they must seek re.
lief by quo a00rrdnto, and not by mdndan,us. This
writ not only commands the Acting Mayor and AL
their offices. N
The authorities upon this point are numerous and
'1he court will refuse to grant the writ of man
damus II 1t appear that the applicant has remedy
by information In the nature Of quo soayranto.
Thus rule for neandapsus to admit recorder was
refused because 1t appeared there q recorder de
Jacto and. therefore. the applicant had euch rem
q case would be, that second person would be ad-
mitted to an ONCE already filled by another, 10th
claiming to be duly elected
the is sieeessa % IS n s
dency Of an information in tho nature Of quo ,uor.
ranto. for 1T may be cellusivs; but If the prosecutor Of
s d. aao ,9Sr,an os a.s" ne agpca"t for IT, nsa'
p. M1
another person disputes the validity Of the election
appointment his remedy is by quo .oarranto in
formation. and nos by n.andam.s" eff the elec-
nation in the nature Of o quo svarranto the court
ought not to grant mandamus ..If such custer and
election be osna de the ceurt will net grant man.
danws IN favor Of the party displaced; the proper
holding the once De jaeso." '' s"'''' ''' p"' y
's'Where the aldermen and ass essors of ward In
borough had declared A. D or to be duly elected as
councillors and they aocordinsly took upon thenc-
selves tho oaaee. snd made declaration required by
zaandomus to allow and to act as councillors,
even assuming that they ought to have been declar.
D and q. Bata information in tho nature Of . quo
ssavvante was granted" (Oole ON Criminal Inior-
nations. LAT, 149, and cases cited.)
AGnddm1s to admit recorder was refused be.
cause there was recorder dc tacto, and the party
had d another remedy. by quo soarranto. There both
Mayor Of Colchester. q T. r.. 259.)
The writ has often been made use of In modern
practice to admit or restore to Office and the rule
as above laid down. seems to have been unchanged.
But when an oH3ce is filed by o person who had
been admitted and sworn and in by color Of right
dnddnsss is never Issued to admit another person
The proper remedy 10 by quo .oarronto. (Angel
Amss on Corpo, ations 61s. 62e. and cases cited;
The distinction above shown between naanda-
mus and quo aDarrante, under the practice in this
State, 10 fully sustained iu State selvre. II Rich
1884, and cases there eited.)
But 1t is said that even II there should be judg.
meat OF custer upon the quo soGrrGo given against
the respondents, they could not be compelled to sur
render the books and property except by nsanda.
mus, and that therefore. It is the proper remedy.
The coult will not assume that in Of Judgment
being pronounced against them on the quo soarranto
the Acting Mayor land Aldermen would so refuse;
sbut even II they should do So the remedy would be
ample without nGndamus. The petitioners then
have another remedy. appropriate. full and
adequate, and, therefore, nsand0mns is not the
remedy. The petitioners counsel contended that