Port Royal Min. Co. v. Hagood

• Decision Date: 02 April 1889
• Citation: 9 S.E. 686,30 S.C. 519
• Parties: PORT ROYAL MIN. CO. v. HAGOOD et al., Board of Agriculture.
• Court: South Carolina Supreme Court

9 S.E. 686

30 S.C. 519

PORT ROYAL MIN. CO. v. HAGOOD et al., Board of Agriculture.

Supreme Court of South Carolina

April 2, 1889

Appeal from common pleas circuit court of Barnwell county; J. J NORTON, Judge.

Application by the Port Royal Mining Company for a writ of mandamus to compel the respondents, Johnson Hagood and others, constituting the board of agriculture, to issue a license to relator to mine phosphate rock. Application denied, and relator appeals.

Elliott & Howe, for appellant.

Joseph H. Earle, Atty. Gen., for respondents.

McGOWAN J.

This was an application to Judge NORTON for a writ of mandamus against the respondents, requiring them to issue to the relator a license to mine phosphate rock in certain navigable streams of the state, under the following circumstances: The relator is a corporation, chartered in this state, for "the purpose of mining, dredging preparing, removing, procuring phosphate rocks and phosphatic deposits, and cleaning, drying, crushing, grinding, and generally dealing in the same in the state of South Carolina," etc., but, having no right to take the phosphate rocks from the beds of navigable streams which belong to the state, they apply to the "board of agriculture" for a license for that purpose. The board refused to grant the license, because they had been informed and believed that the corporators and owners of the property of the said Port Royal Mining Company are now indebted to the state in a large amount for royalty due the state under a license issued to W. T. Seward & Co., their agents; and (2) because the said Port Royal Mining Company are operating at the same time both as miners and manufacturers. The respondents deemed it unwise to grant a license to persons who operated in the double capacity of miners and manufacturers, on account of the difficulty, in such cases of procuring satisfactory returns of the quantity of rock mined, and the facility with which frauds may be perpetrated against the state. The respondents, however, made return to the rule that they were willing to grant the license upon the conditions stated in the following resolution: "That it be referred to the commissioner of agriculture, under the advice of the attorney general, first to procure the payment of the said royalty [referring to the royalty due as aforesaid by W. T. Seward & Co.] in its full amount, and then, and not till then, to grant a license to the applicants to mine: provided, further, such regulations are devised and agreed upon, in view of the applicants being manufacturers as well as proposed miners, as will secure a just accounting to the state for royalty on rock to be raised," etc. The commissioner of agriculture, to whom the matter was referred under the revolution, was unable to devise such regulations as would protect the interest of the state as directed, and the license was not granted. Thereupon the relator filed this petition to compel the board of agriculture to issue the license demanded. Judge NORTON, after argument, denied the writ, upon the ground that to grant the license was not a plain ministerial duty of the board, but was within the discretion given them by the statute, holding also that the act giving such discretion was not unconstitutional. "The authorities recited relate to acts where only the right to exercise certain privileges upon which a general restraint has been laid was involved; not to the disposition, as in the case before me, of private property. For example,--the right to sell liquors, not the right to require the government to furnish liquor to be sold; the right to set up a laundry, not the right to use government buildings for that purpose," etc. From this order the relator appeals to this court upon numerous exceptions, which are printed in the brief, and need not be restated here.

We think all the points made may be considered under the following propositions: First. That it was error to hold that the respondents refused to grant the license in the exercise of a discretion given them by law; second but, if so, that the act of the legislature purporting to confer such discretion was unconstitutional, and conferred no legal authority, (1) because it was an effort to delegate legislative authority to the board of agriculture; (2) and because the act does not specify the standard to which an applicant for a license must conform, but the establishment of such standard, and whether an applicant for such license meets the requirements of such standard, are both left to the arbitrary and unregulated discretion of the board of agriculture. Did the board of agriculture have the discretion to grant or refuse the application for a license, as in their judgment they deemed best for the interest of the state? The writ of mandamus is the highest judicial writ known to the law, and it is well settled that it issues only in cases where there is a specific legal right to be enforced, or where there is a positive duty to be performed, which can be performed, and where there is no other specific remedy. "When the legal right is doubtful, or when the performance of the duty rests in discretion, or when there is other adequate remedy, a writ of mandamus cannot rightfully issue." See Ex parte Mackey, 15 S.C. 330. Soon after the value of...