The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1869-03-25
MINDIMUS.
Opinion of Hon. II. 3. Carpenter, STATE
Circuit Judge, Quashing the Writ.


In answer to this writ the respondents do certify
and de- are unto the court, "that they do not sur
render unto said persons the properties and ohces
aore.ao. because they say that they are in posses
sion of said Offices having been adm tted and sworn
under appointments and elections duly made, ana
that ma damus is not, therefore, the proper remedy
of the petitioners"
The respondents, in further answer to the satd
writ set forth the title under VIII ch they claim to
hold their respecti, oices they traverse the seve
raj allegations made by tue petitioners as inc rounus
upon which hy are entities 10 Inc Will & atH tSeS fnr
ther aver that the act of the Legislature, ra'ihed
on the lst day of March, instant, under the Prov,
sions Of which the petitioners claim To oe eniea
of the eorpsratorsof be city, and also ot the Con
stitution cf the State and OF the United states IN
several particulars and therefore imperative ana
void Upon the filing of this return tne pe,i'ion-
err counsel asked for time to plead, winch was
granted.
the respondents return. The demurrer OF the peu,
ioners admits all the allegations OF the respondents
return which are properly pleaded, and would seem
to put in issue the suciency in law OF their cause
shown by them tor not obeying the mandate o, tne
writ, but at the hearing the argument was connneo
to the question made in the Grst section OF tne ce
sponden,s' return-is manddmus the proper reneoy
for the petitioners? The other questions raised In
the respondents return ware waived, nor were tney
in the pleas to the writ uf quo ioarrdno against the
same respondents issued and returnsbe at the same
time and at the instance Of the same REALTORS when
was set down for hearing at later day. tue argu-
ment was not had upon these questions, but was re-
served until the hearing of the quo t1crranto.
The question discussed at bar. and now to be dec-
ded is narrow and formal one, and does not go 10
the merits OF the case.
remedy against public officer. who negects or re-
fuses to do some duty which the law epjons upon
him, and in which the petitioner or relator has an
interest in and right 10 have done, and where there
i, no other remedy which is full, appropriate and
! adequate The question is whether this Is such
CASE On the part of the RESPONDENTS II Is contcno
ed that it is not because they are possession Of
the Offices which the writ commands them to vaeate
aud surrender 10 the petitioners DC Jdcfo ana oy
color of right; and that the remedy OF tie peteners
| ia upou an information IN the nature OF qu' war
rnnto in which their title will be put In question:
and upon which the ju Gment Is OF ouS'er from me
| Offices beld by them; ard that this remedy mas
| been already granted to tie petitioners 6y TINS
court The petitioners, on the other hand, claim
them by law, to yacate their Offices. and surrender
them to the petitioners-and that they can never
obtain possession of these Offices, even II there
should be q ju lgment of custer upon the quo war-
ronto, except by mandamus, which 's the only ade-
| auate therefore the proper remedy.
The books speak OF manddmus as ueed to Gdmlt or
Te,tore to an Office; but 1t must be borne IN mind
that when used for this purpose 1t is directed to IN
ofcer or officers whose duty 1t 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 Id ofder 10 perform
| the duty required of him.
But when the Office sought is filed by one claim
ing it in his right, mdnddmus If not the remedy
for one claiming against the incumbent In such q
case tho claimant entitled to the relief o the court,
must ob:uin it through quo ioaTrGato .
To illustrate hs distinction IN tue present case II
the Acting Mayor and Aldermen OF Charleston should
refuse to allow one to exercise pupnc once. 10
which he had been elec ed by them. he would, upon
a proper case made, be entitled to mdnddmH' COM
mapding them 10 admit him; but where the peti.
toners seek for themselves the Offices OF which the
Actin. Board are in possession, they mus seek re-
lief by QUO aourronto and not by mand1mus. This
writ not only commands the Acting Mayor and AL
.rmen to surrender certain property, but vacate
their Offices.
The authorities upon this point are numerous anu
de:siye
damus il it appear that the applicant has remedy
by information in the nature of quo 1odrrdnto.
Thus a rule for mandomus to admit recorder was
refused because it appeared there was recorder de
facto and therefore, the applicant had such rem
edy. For the consequence OF yrannns RUE suen M
1aitted to an Office already filled ny another' ro'o
claiming to be duly elected.
ssThe court will, however, in some cases, grant
mandamus although the title of the officer to whom
the ma dar.s is directed Is questioned by the pen
dency of an information in the nature Of quo toar-
ranto for it may be cousive but II the prosecutor V
IL. quo ,oarranto oe also me aPpsIeont J0r ae n'am
dansus, It is othertoi;e." Tapping on 4andam~s,
"When An Office or franchise is full de (dcto. and
another person disputes tho validity OF the election
or appointment his remedy Is by quo soarrdnto In
formation aud net by mandamus III the cleo
ton were doubtful aud h to be tried upon an tnior-
nation in the nature Of o quo aodrrdnto the court
ought not to granta maHdamus." "H such custer and
election be bsna de The court will not grant man
dam,ls In favor Of the party displaced; the proper
proceeding Is by quo wdrrdnto against the party
| holding the once de Jdcto.
teWLere the aldermen and assessors of ward 10
| A nr @ elected
councillors, and they accordingly took upon 'hez-
selves the cfice and made declaration required by
law aad acted as councillors, the court refused q
| nandamus to allow and 2 to aceas councillors,
even assuming that they ought to have been declar-
ed duly elected for the Office was full de Jdeto of A,
and G. But an information in the nature Of quo
,uarranto was granted" tCole on Criminal Inier-
nations. lat, 14s, and cases cited.)
Mondan,.s to admit recorder was refused be-
cause there was q recorder de tdcto. and the party
had another remedy, by quo roaTTanto. 1hrre ootn
OF them claimed under the same election lhe1 vs.
Mayor Of Colchester, I. R.. 25s
The writ has often been made use Of III modern
practice to admit restore to an Office and the rule,
as above laid down, seems 70 have been unchansed.
But when an Office is filed by person who mad
been admitted and sworn, and Is n by color Of r2nt
ndnqon,us is never issued to admit another person
The proper remc]y 10 by quo iodrrdnto. (Angei
Ames on Cerpol ations. 618. 626, and cases cited;
Moses on Aanddmus l50.)
The distinction as above shown between mdnag-
mus and quo lrarrant0, upder the practice IN this
stale is fully sustaned iu State selvre. Rlch
| 234, and cases there cited
But it is said that even if th-re should be judg.
meut of custer upon the quo rdrranto given against
the respondents they could not be compelled to sur
render the books and property except by nianda'
mus and that therefore, i: Is the proper remedy.
The count will not assume that in case of judgment
being pronounced against them on the quo ,oarrdno
the Acting Mayor and Aldermen woull SO refuse;
but even IL they should do so. the remedy would be
ample without manddmas. The petitioners then
| have another remedy, appropriate, full and
! adequate, and, therefore, nanddmas is not the
| remedy The petitioners counsel contended taat
the act Of the Legislature having declared the pe-
TONERS entitled to the offices held ly the respond
ent.. mat aandamus was tn, proper remedy 10 com
pei their obedience to the act Assuming its validity
i; confeIs right, but does not prescribe remedy
In this case to cave tho OF the court from De-
| ing consumed in hearing the same argument twice,
the alternative andamus was issued III tho hrst III
! stance, without preliminary ru C 10 show cause.
Had cause bsen sho|n III reponse to o rule, t:le
alternative writ would not have been issued. BENG
male as return to an alternative writ, 1t Is held to
be sufficient why peremptory writ shall NOT issue
| Ihe demurrer of the petitioners is oYerruied ana
the alternative writ OF mandamus will be quashed,
| and IL Is so ordered. r. B. CARPENTER.
March a. 1860.
HOTEL ARRIVALS, March 24.-Pdutlon Hotel
A Gladwin, Richmond; A Arner, New YORK; c Cair.
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