The herald and news. [volume] (Newberry S.C.) 1903-1937, 1908-03-10

Of him. The litigation is with the Of
4 ficer, not the State. The law makes il
his duty 10 assign the liens in uues-
ton to the trustee When they make a
certain payment. The trustees claim
that they made this payment. Tile
oilicer says they have not, and there
Is no ~cntrovcrsy about his duty if
they have. the only inquiry is. there
Fore. as to the Fact Of Il payment ar-
cordin% to the requirements Of the
law. IL ii has been made. the lrus-
tees are entitled TO their decree. II
ii has not. Il decree in their favor, rs
the case now staads, must be denied:
" but as the parties are all before the
a court, and the suit is in equity, i:
Mmay be retained so as to determine
SSwhat the trustees must do in order to
SSfulfill the law, and under what cir
circumstances the governor can be COM
to execute tle assignment
(which has been provided for"
5& This principle is fully sustained in
the cases Of Osborn vs. Bank. Wheat
1873; oI'ard Of Liquidation vs.. Me
Comb, % |. S., j3l; Pcnnoycr vs..
N~rcConnau9hv. 1l0 L. S., |; Reagan
Us. Farmers Loan and Trust Co.,
"a lo4 L. s., 3S0; Scott Us. Mcdonald.
lG5 L. s.. III; Tialal vs.. Wesley, 167
L. S., 220.
The failure Of The defendants to
comply with the statute cannot be
treated rs Il refusal Of the State to
comply with the statute. On the
contrary, ii is 4 refusal on the part OF
the defendants to do that which they
have been directed TO do by the sta
tute. Therefore suit instituted
against the defendants for the pur-
pose OF requiring them TO perform the
duties cnjoiaei upon them by the
statute is Il suit against them as iii
4 %dividuals, and is not in any sense Il
II suit against the State.
St AS lereinbcforc state, it is insist
s. cd by counsel for the defendants that
I" the commissioners arc vested with
discretion and Judgment TO pass up
on the question rs to whether or not
The claims Of creditors are Just and
valid, and that, therefore, this cour.
cannot interfere with such Judgment
or discretion. The rule that courts
will not control an officer in the en-
ercise Of discretion conferred upon
) him is subject to qualification. and
this IS especially true in Il court Of
Equity when its exercise affects in
dividual rights.
1t is well settled that the courts
nave the power to prevent an abuse
of discretion and require that ii be
Y exercised according to law and in
3 ]ure property rights.
"Aulitiny officers will be required
by mandamus to make their audit ac-
cordin" TO law. If The compensation
us fixed by statute OF agreement they
y will be required to audit The compen-
~ station so fixed. IF they have already
s audited all account for Il less sum
%than that fixed by statute or agree
SSSment they will be required to set
the audit already made and To
\ rcaudit accordin" TO Iaw.' ANN and
IMlEn% Enc Law. (l Ed,) Volume IA.
l49. People VS. Elmira Auditors, 50
Y. so.
3NFaThe Act authorizing the appoint
IL ent OF these commissioners does not
aundcrtakc TO give to them discretion
u as TO what claims to pay, but express
Why directs them to pay all just liabil-
SMtics. Hence i; follows that if Il claim
MS Just their duty is mandatory and
&fheN possess no Judgement or discrr-
@tion as to lis performance.
AZ 1T appears from thc allegations of
y the bill that these defendants have
Nalrcady exercised the discretion with
II which they are invested by auditing
IS and adjusting several accounts claim
}2d 10 be due.
a Amnl" other things it is charo-
Z ed in tnc bill! that the defendants
Z have improperly managed the funds
placed in their hands. \ careful con-
sldcration of the evidence fails TO
sustain this contention. ii clearly APP
pearln" that these defendants have
done no wrong in that respect. and
that they are gentlemen Of high char
actcr and stan ling.
1t is insisted by rounsc! fer de-
PENDANTS that This suit is instituted