Edgerton v. Kirby

• Citation: 72 S.E. 365,156 N.C. 347
• Court: United States State Supreme Court of North Carolina
• Decision Date: 18 October 1911
• Parties: EDGERTON et al. v. KIRBY et al.

72 S.E. 365

156 N.C. 347

EDGERTON et al.

v.KIRBY et al.

Supreme Court of North Carolina.

Oct. 18, 1911.

1. Mandamus (§ 174^*)—Issues of Facts-Trial.

Under Revisal, § 824, requiring mandamus to be continued until jury trial of any issues of fact, suit to compel township road commissioners to meet to fill a vacancy was properly transferred for jury trial, where an issue of fact was raised as to the existence of a vacancy.

[Ed. Note.—For other cases, see Mandamus, Cent. Dig. §§ 386, 387; Dec. Dig. § 174.*]

2. Mandamus (§ 72*)—Subjects of Relief-Public Official Duty.

Generally, mandamus lies to compel a public officer to do a mandatory duty, but not to control exercise of discretion given him.

[Ed. Note.—For other cases, see Mandamus, Cent. Dig. § 134; Dec. Dig. § 72.*]

3. Mandamus (§ 1*)—When Proper Remedy.

Mandamus is an extraordinary remedy and lies only in cases of necessity.

[Ed. Note.—For other cases, see Mandamus, Cent. Dig. §§ 1-3; Dec. Dig. § 1.*]

4. Mandamus (§ 7*)—Nature of Remedy-Discretion.

Mandamus is so far a prerogative writ that it may be granted or withheld according to a judge's sound judgment, but the discretion is judicial and not arbitrary, and where there is a right and no adequate remedy, should not be denied.

[Ed. Note.—For other cases, see Mandamus, Cent. Dig. § 5; Dec. Dig. § 7.*]

Appeal from Superior Court, Johnston County; Peebles, Judge.

Action By N. E. Edgerton and others against Charles F. Kirby and others. From an order transferring the cause for jury trial, defendants appeal. Affirmed.

This is a suit for mandamus to require the defendants, except defendant Green, to meet with the plaintiffs and to elect the seventh member of the board of road commissioners of Selma township. The complaint alleges that after M. C. Winston, the seventh member of said board, resigned, the six remaining members met, and, there being a tie vote (three voting for defendant Green and three voting for H. E. Earp), the chairman, N. E. Edgerton, being doubtful as to his power to break the tie, the meeting was adjourned. It is further alleged that the three defendant commissioners thereafter met with the defendant W. A. Green, and undertook to perform the duties of road commissioners of Selma township, and that the defendant Green has no right or title to said office, being a usurper thereof in palpable disregard of the law, that his holding the same is merely colorable, and that he should be removed from the office so unlawfully usurped by him. The complaint further demands that the other defendants shall be required by the court to meet at the call of the chairman and elect and induct the seventh commissioner into office, and a prayer accordingly is inserted in the complaint. The defendants answered the complaint and alleged that the defendant W. A. Green is holding the office of road commissioner of Selma township, that he was elected at the first meeting of the board, when M. C. Winston resigned, by a vote of three in favor of Green and two in favor of Earp. The matter came up for hearing before Hon. R. B. Peebles, judge, upon motion of the plaintiffs, under section 824 of the Revisal, to transfer the case to the superior court at term for trial of the issues thus joined between the parties, whereupon the following order was entered: "The court being of the opinion that the whole matter depends upon whether W. A. Green got three votes and his adversary got two votes in the meeting of the board of road commissioners of Selma township held on May 6, 1911, the motion of the defendants is denied, and defendants except and appeal to the Supreme Court. Plaintiffs move and request that the issue raised by the pleadings as to the number of votes received by said Green and Earpbe submitted to a jury at the next term of the superior court of Johnston county, which | convenes on the 11th day of September, 1911, j upon the pleadings herein filed. This motion is granted, and it is ordered that this action be and the same is hereby transferred to the superior court of Johnston county for trial by jury at the September term, 1911, of said court." Defendant excepted and appealed.

Abell & Ward, for appellants.

Aycock &Winston, for appellees.

WALKER, J. [1] The order of Judge Peebles was correct. There was nothing else for him to do, except what he did, in view of the express provision of the statute (Revisal, § 824) requiring the judge, when an issue of fact is raised by the pleadings, to continue the action until it can be tried by a jury upon the issue thus joined between the parties. Such an issue was plainly and directly raised by the pleadings. Plaintiffs alleged that W. A. Green was never legally elected a member of the board of road commissioners, but is an usurper of that office without the shadow of right or title to it, and they ask that he be so declared, and that the three defendant commissioners be required to meet in joint session with plaintiffs and elect the seventh commissioner to fill the vacancy created by the resignation of M. C. Winston, in order that the business of the board may be transacted. Defendant squarely denies the allegation and, on the contrary, avers the truth to be that W. A. Green was duly elected a commissioner by a majority vote and is entitled to hold the office and exercise its functions. This presents a preliminary issue to be determined before we reach the question | whether the plaintiffs are entitled to a mandamus for the purpose of compelling the three defendant commissioners to meet with them to elect the seventh commissioner and complete the personnel of the board. If the jury find that W. A. Green was duly and lawfully elected, then there is no necessity for a mandamus, unless he and his codefendants should refuse to meet with the plaintiffs and discharge the duties imposed upon the board by law. We will discuss and decide that question when we come to it, and not prematurely and perhaps unnecessarily. The case of Rhodes v. Love, 153 N. C. 468, 69 S. E. 436, so much relied on by the appellant, does not, we think, have any present bearing upon the case. Whether it will or not, if the jury find that W. A. Green was not duly elected a member of the board, is a matter upon which we prefer not to express an opinion, at this time, for it may become a moot question.

It may be said, generally, that, if a public officer fails to perform...