Federal Land Bank of Columbia, S.C., v. State Highway Department of South Carolina
| Decision Date | 14 March 1934 |
| Docket Number | 13806. |
| Citation | 173 S.E. 635,172 S.C. 207 |
| Parties | FEDERAL LAND BANK OF COLUMBIA, S. C., v. STATE HIGHWAY DEPARTMENT OF SOUTH CAROLINA et al. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Kershaw County; W. H Townsend, Judge.
Proceeding in mandamus by the Federal Land Bank of Columbia, S. C. against the State Highway Department of South Carolina and others. From an adverse judgment, plaintiff appeals .
Affirmed.
Kirkland & De Loach, of Camden, for appellant.
John M Daniel, Atty. Gen., and J. Ivey Humphrey and J. Ingram Wilson, Asst. Attys. Gen., for respondents.
On August 20, 1930, the State Highway Department, desiring to acquire certain land for highway purposes on State Route No. 26, between Camden and the line of Sumter county, gave notice of condemnation to L. W. Boykin, as administrator of the estate of A. H. Boykin, deceased. The land sought to be acquired formerly belonged to A. H. Boykin and after his death became the property of his heirs at law. No notice of condemnation was given to the plaintiff herein, the Federal Land Bank, which held a mortgage upon the premises, or to any of the heirs at law of A. H. Boykin.
The Board of Condemnation, composed of three individuals, L. W. Boykin, the administrator, being one of them, met on September 2, 1930, for the purpose of condemning the right of way and thereupon passed a resolution assessing the damage at $200 to be paid to Miss Mary C. Boykin, Boykin, S. C., Mrs. Elizabeth R. Hughes, Charleston, S. C., Mrs. William D. Boykin, New York City, and the Federal Land Bank of Columbia, S.C. We presume that the Board of Condemnation was informed by Mr. Boykin as to the names and addresses of the heirs and also as to the mortgage held by the plaintiff bank.
On the day following the condemnation proceedings, to wit, September 3, 1930, the bank was notified of the award, and at a later day the State Highway Department issued its voucher for $200 payable to the Boykin heirs, as above given, but omitting the name of the bank therefrom.
On October 8, 1930, the bank wrote the Highway Department requesting payment of the award and on the day following was informed, by letter, that the voucher for $200 had been sent to the landowners. On October 27, 1930, the voucher, having been properly indorsed, was paid at the office of the Comptroller General.
Such were the facts existing at some later date when this proceeding was brought by petition in mandamus to compel the Highway Department to issue a voucher to the plaintiff for $200, the amount of the award. We omitted to say that before this petition was filed the plaintiff had foreclosed its mortgage and had bought in the mortgaged property at a loss.
The Highway Department filed its answer and return to the petition, but the facts above stated practically cover its allegations. In truth, we might say, there is no dispute as to the facts of the case. The petition was heard before Judge Townsend, who passed an order denying the writ of mandamus and, from that order, the bank has appealed.
The exceptions are three in number and impute error to the circuit judge in holding: (1) That the payment by the Highway Department of $200 to the heirs of the mortgagor in possession was a discharge from further liability; (2) that the remedy of the bank was to follow the fund into the hands of the heirs or to hold the heirs in a civil action; (3) that the petitioner was not entitled to the writ of mandamus.
The question of jurisdiction of the court in the main cause was first presented by the Highway Department in this court, the ground being that this is a suit against the state and that there is no statute authorizing such suit. That this point can be raised in this court for the first time has been repeatedly held and the procedure is, therefore, proper.
It appears necessary that the jurisdictional point must be decided before any of the other questions involved in the appeal be considered. As has been said, "This question meets us at the threshold." If the court had no jurisdiction, the other questions presented by the appeal, interesting as they are, are rendered academic.
Mandamus is somewhat of a hybrid proceeding. It is not a suit in tort nor is it a suit in contract; it is not strictly a law case, nor is it one in equity. It is based upon the theory that an officer charged with a purely ministerial duty can be compelled to perform that duty in case of refusal. It is available against officers generally, and in some states it is even permissible against the Governor. State v. Ansel, 76 S.C. 406, 57 S.E. 185, 11 Ann. Cas. 613. It has been used against various state,...
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