McIver v. State ex Relatione B.D. Town Send

• Decision Date: 13 April 1870
• Citation: 2 S.C. 1
• Parties: HENRY MCIVER, PRESIDENT, AND JOHN MCIVER, TREASURER OF THE CHERAW AND DARLINGTON RAILROAD COMPANY, PLAINTIFFS IN ERROR, v. THE STATE Ex Relatione B. D. TOWN SEND AND OTHERS, DEFENDANTS IN ERROR.
• Court: South Carolina Supreme Court

2 S.C. 1

HENRY MCIVER, PRESIDENT, AND JOHN MCIVER, TREASURER OF THE CHERAW AND DARLINGTON RAILROAD COMPANY, PLAINTIFFS IN ERROR, v. THE STATE Ex Relatione B. D. TOWN SEND AND OTHERS, DEFENDANTS IN ERROR.

Supreme Court of South Carolina.

April 13, 1870

Courts of General Sessions have no power to issue writs of mandamus , that power being vested by the Constitution in the Courts of Common Pleas.

This case was brought here from the Court of General Sessions for Chesterfield County by writ of error.

The transcript of the record showed that it was an application to the Court below for a writ of mandamus to compel the plaintiffs in error (defendants below) to transfer stock of the Cheraw and Darlington Railroad Company on the books of the corporation. The Circuit Judge granted the writ, and the only question considered here was that made by the third assignment of error, as follows: " That, by the Constitution and laws of the State of South Carolina, in force at the date of the order directing the writ of mandamus in this case to issue out of the Court of Sessions, no jurisdiction or power to issue writs of mandamus resided in said Court of General Sessions."

Barker , for plaintiffs in error.

Memminger, Harllee, Chamberlain, Townsend and Hudson , contra.

OPINION

MOSES C. J.

The third ground taken by the plaintiffs here assigns as error the exercise of jurisdiction by the Court of General Sessions for Chesterfield County in issuing the writ.

This submits a question which we prefer to decide as preliminary to the other points; for if the Court was without authority all enquiry into the merits of the cause is precluded. We are sensible of the importance of the issue thus presented, and of the interest which it excites. We would have preferred a full opportunity to consider the argument and examine the authorities; but to defer a decision might seriously prejudice the parties by delay, when they are entitled to a prompt judgment on the merits of the case by some Court of competent jurisdiction.

The rule to shew cause, and the order for the mandamus , issued from the Sessions side of the Circuit Court for Chesterfield County, and the question which we propose to consider and determine is, whether the Court of Sessions, as now organized, has jurisdiction of the writ and the incidents which attach to it.

Whether the writ, so highly prized as affording a remedy, convenient and beneficial, by reason of its immediate and efficient action, directly operating to prevent a wrong or enforce a right, is to be regarded as a prerogative writ, said by Lord Mansfield to flow from the King " himself sitting in the Court of King's Bench," or whether, according to modern practice, it is recognized as nothing more than an action between the parties, " an ordinary process in cases to which it is applicable," will, in no manner, affect the question we are to meet. Whether viewed in the one light or the other, it is accepted as a common law writ, and will be deprived of none of its functions or attributes, although a State Constitution or Legislature may empower some Court to entertain it which was not before supposed to have the common law right to take cognizance of it.

It may be conceded that, up to the ratification of ...