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

idcl at one time was, that the WITH weulo
only lie to command tho performance or 0
ministerial duty; bat later cases have gone
further, and it is now the constant practice to
grant the writ, to command the performance
by any inferior jurisdiction, or officers, OF any
public du:v for which there is no specific RENE
DIV. Tappan 12, 476 More especially does
this apply in matters enjoined by stota!e, and
thus the Court of Kings Bench where the or.
dlnary IAN ecclesiastical judge) refused q grant
OF administration OF probate Of will. the
Kings Bench. a temporal court ordered the
writ. Anonymous, Strange 1, $50; KING vs..
| Doctor Hay, Blackstones heports 1, GAS; Ba-
con 6. 1[an1amus D, 434; and the ruling was fol
lowcd in Sllas vs.. Ransom. John G. 279 and Stale
VS.. Watson, Spears 2, los. 10 what extent the
court by this prerogativo writ would attempt to
interfere with an inferior jurisdiction, where ju-
dical powcr was to bo exercised; il is not neccs-
| sary now to decide. In the case OF the Com
missioners of the Poor vs. Lvnah, Nice. 2, ITO,
the court said that they would interpose II there
had been IN abuse OF discretion, and this was
| in regard to body clothed with Judicial au-
tho1Ity in the matter in which they had acted.
Law Rep. 1. 165, often referred to in the ar
eumeut, said: s'But the authority OF managers
Is not purely judicial; that discretion is limit
| ed by legal restraints. and, being inferler,
magistrates OF fixed character, even though
they should confne themselves within the
bounds of their jurisdiction. yet they
must be subject to the visltorial juris-
dictiop of the Court of General Sessions
| to regulate and control them IN the exercise Of
their discretionary power" And he refers to
East. TO- 403, and East. Z, 80. The mere power
to Investigate and declare an election Is net OF
such judicial character as precludes super
vision by the writ Of n,dndanaus.
The Legislature appears to have had in view
all the acts heretofore passed in relation to
nF their
we're concerned, and to limit tho Board OF AL
dermen in the contingencies provided for, to
the mere investigation Of the contested case
and the declaration of the election. This per-
mitted scrutiny, and all that was necessary for
the proper execution of the power thus conf
ded. What that de claration should be depend
ed on the facts elected IN inquiry; but it is re-
quired by the act, for otherwise party
interested could not be placed in the
position which the law comedies to him,
to assert through the courts his right to
an Office The declaration may in the cad DO
of no value to him, but still If the act extends
the privilege, it was not competent for the
board to deprive him of it BY neglect or re-
tusal to carry out it's provisions.
1t is made O substantive duty on the pnrt OF
the managers the words were intended to de-
note something. The language is plain, a1d
has significance and meaning which the court
is not at liberty to overlook or disregard.
Ii is said, however, that the writ will not be
granted where it must be fruitless, vain or USE
less, aud that the court has full discretion 10
the matter.
It is true that if the writ conld have
DO result, as in the case Of tho Queen
rs. Trustees of Noruicit SaUin9 Bank
A. and L. 8, 729, or where the act to be
performed would fail to carly out the purpose
of rclator because il could not bo accomplish
ed in time to render IT available, the court
would stay its hand. 1t has not been made to
appear that any such obstrnctions or dithcul-
ties prevail in the case before us.
OF oil the powers which q court is called on
to exercise, it approaches none ofthem with
more caution md distrust than those which
are alleged to be. within lts mere discretion.
Where the law affords fixed principles for gull
dance, there is less danger OF "false Judg-
ment."
Where nothing is to bo followed but tho sug-
eostions OF illegal will" there is conscious
ness of want OF salty, because there is no reh-
ance: but in tbs dicta tion ofmere reason which
would induce fuctuation and vacilla:ion in
the law, inconsistent with public security, and
which might entail on the community al tho
evils which q regulated system Of Law was IN
tended 10 prevent.
Where discretion is to be exercised, it must
be governed by some admitted and prehx@ed e.
standard OF right. It is true that where the
end sought is only private one, or granting
the writ would be attended with manifest hard
ship, there it will be withheld. Bacon 6, 44S;
Van Ransaeller vs.. Sheriff Of Albany; Cowan's
1, 512. -.
How, in q matter OF public concern affecting
q large city, can we undertake 10 say that the
relators are not entitled to tho remedy which
the law provides to place them in position in
which they may assert their claim to an Office?
The wrongs and hardships would be in pre-
cluding them from the opportunity ofesta6ish,.
ing, iR they can, right from the possession, OF
which, they aver, they are prevented by the
non-performance by the Board OF Aldermen OF
duty which the law enjoins.
January z, 1869.