Burton v. Furman
| Decision Date | 20 November 1894 |
| Citation | 20 S.E. 443,115 N.C. 166 |
| Parties | BURTON v. FURMAN, State Auditor, et al. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Wake county; Hoke, Judge.
Petition for writ of mandamus by R. O. Burton against R. M. Furman auditor, and another. There was a judgment for defendants and plaintiff appeals. Affirmed.
R. O Burton, for appellant.
The Attorney General and R. C. Strong, for appellees.
This is an action whereby the plaintiff, an attorney at law, seeks to recover $974.88, the balance of a fee of $5,000, claimed by him for services rendered the state in litigation with the Wilmington & Weldon Railroad Company over its liability for state, county, and city taxes, and to compel the payment to him of said sum out of the fund placed in the state treasury by the counties and the railroad company under the provisions of section 7, c. 100, Priv. Laws 1893. As set out in the complaint, there had been much litigation concerning the right to tax the said company, and the act above named was the result of long negotiation for an adjustment of all matters in difference on said account. Section 7 is the final section of this act, and reads as follows: The parts omitted are immaterial for our present purpose. The action is both to ascertain and declare the amount due and to procure a mandamus to the auditor compelling him to issue his warrant, and to the treasurer to compel him to pay the same. There is no further contention that the writ of mandamus is a high prerogative writ, as it was at common law. It is now a writ of right, to be used as ordinary process; and every one is entitled to it where it is the appropriate process for asserting the right claimed. Code, §§ 622, 623; Belmont v. Reilly, 71 N.C. 260. So the first question presented is, is this the appropriate process for ascertaining the plaintiff's right? The purpose of this writ of mandamus is to require some superior court, officer, corporation, or person to do some particular thing which appertains to their office or duty, and it will not be granted where the law affords to the party aggrieved another and complete specific remedy. Neither will this writ be granted to compel the performance of an act involving the exercise of judgment and discretion on the part of the officer to whom its performance is committed. The law is so thoroughly settled in this state by the former adjudications of this court that we have nothing to do but to refer to them. A case strikingly like the present one is Boner v. Adams, 65 N.C. 639, where the plaintiff, a clerk of the general assembly, who had received a warrant for the entire number of days to which he was entitled at $7 per day, claimed that he was entitled to be paid $3 per day in addition to what he had already received, under an act of assembly (chapter 1, Sess. 1869-70) which provided that the mileage and per diem of the clerks shall be the same as allowed by the last general assembly. And further it was provided that "the auditor of the state is hereby authorized to draw his warrant upon the treasurer for such sums as have not been paid or may hereafter be due." The auditor refused to draw his warrant upon the treasurer for the additional sum demanded, and thereupon application was made to the court for the writ of mandamus to compel the auditor to issue the warrant and the treasurer to pay it. It was held that mandamus would not lie against the treasurer, because no warrant had been issued, and not against the auditor, because it was something more than a ministerial duty sought to be required of him. This was before the act of 1871 (section 622 of the Code), which provided that all applications for mandamus should be made by summons and complaint; but the principles governing the issue of mandamus were the same then as now, and the decision is a controlling one, in which we fully concur. Since the passage of the last-named act the subject has been often considered. Selecting one of such cases (Brown v. Turner, 70 N.C. 93), we find a very clear statement by Mr. Justice Bynum: "Mandamus will lie when the act required to be done is imposed by law, is merely ministerial, the relator has a clear right, and is without any other adequate remedy. Mos. Mand. 68. But it does not lie where judgment and discretion are to be exercised, nor to control the officer in the manner of conducting the general duties of his office. 2 Dill. Mun. Corp. § 665; Com. v. City of Pittsburg, 34 Pa. St. 496. In Decatur v. Paulding, 14 Pet. 497, it was held that mandamus would not lie against the secretary, because the duty required by the writ was executive, in which judgment and discretion had to be used, to wit, in construing and passing upon an act of congress. To the same effect are Brashear v. Mason, 6 How. 92; U.S. v. Guthrie, 17 How. 284, --where the court says: "It has been ruled that the only acts to which the power of the court by mandamus extends are such as are purely ministerial, as to which nothing like judgment and discretion in the performance of the duties is left to the officer." Code, § 3350 (7), prescribes, among the duties of the auditor, "to examine and liquidate the claims of all persons against the state in cases where there is sufficient provision of law for the payment thereof, and, where there is no provision, to examine the claim, and report the fact, with his opinion thereon, to the general assembly." It will be seen at once that the duty of the auditor is not in this instance a ministerial one, but he is required to exercise his judgment in the examination...
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