Raleigh & Augusta Air-Line R.R. Co. v. Jenkins

• Decision Date: 31 January 1873
• Citation: 68 N.C. 502
• Court: North Carolina Supreme Court
• Parties: RALEIGH & AUGUSTA AIR-LINE RAILROAD COMPANY v. DAVID A. JENKINS, Public Treasurer.

68 N.C. 502

RALEIGH & AUGUSTA AIR-LINE RAILROAD COMPANY

v.DAVID A. JENKINS, Public Treasurer.

Supreme Court of North Carolina.

January Term, 1873.

Where an Act of the legislative branch of the government directs an executive officer to do a specific act, which does not involve any official discretion, but is merely ministerial, as to enter a specific credit upon an account, and the officer refuses to do so, a mandamus will be ordered.

The Court has power to compel the Public Treasurer to do only such an act as involves no official discretion, and as is required by an express command of the General Assembly.

Under the ordinance of the Convention, made 11th of March, 1868, in favor of the Chatham Railroad Company, the Public Treasurer is not bound to accept in exchange for mortgage bonds of said Company any State bonds issued after the passage of the ordinance.

CIVIL ACTION to obtain an order for a Mandamus, returned before Chief Justice Pearson, at Chambers, in the city of Raleigh, on the 1st day of February, 1873.

The facts are the same as in the foregoing case between the same parties, except that in this case the bonds tendered by the plaintiff, for which were demanded the mortgage bonds of the Chatham Railroad Company, were bonds of the State, some of them issued prior to the ordinance of the Convention, ratified 11th March 1868, and some issued after the passage of said ordinance.

On the return of the summons the defendant filed a special demurrer to the complaint, and Chief Justice PEARSON made the following order: No action of the Court being required, it being informed that either party will appeal, I decide the matter against the defendant, to the end that the case may come up without further security.

From this decision the defendant appealed.

Attorney General Hargrove, for appellant .

Batchelor, Edwards & Batchelor and Clark, contra .

PEARSON, C. J.

We hold, but with much hesitation, that this Court has power by mandamus to require the Public Treasurer to accept bonds of the State, and to deliver to the plaintiff a like amount of the bonds of the Chatham Railroad Company, which he holds by reason of an exchange of State bonds for the bonds of that Company.

It must be admitted that the power of the Courts to compel by the writ of mandamus, an executive officer of the government to do certain acts, has been carried to its utmost limit, so as not to violate the provision of the Constitution--that the executive, legislative and judicial powers of the government ought to be forever separate and distinct from each other. Const. Art. I, sec. 8.

It is settled, that when an act of the legislative branch of the government, directs an executive officer to do a specific act which does not involve any official discretion, but is merely ministerial--as to enter a specific credit upon an account, and the officer refuses to do so, a mandamus will be ordered. Kendall v. U. S., 12 Peters' 524.

By ordinance 11th March, 1868, it is ordained: “The Chatham Railroad Company may at any time before maturity take up the bonds of said company, deposited with the Public Treasurer, by substituting in lieu thereof coupon bonds of the State or other indebtedness of the State.”

By an act of the General Assembly, 13th December, 1871, it is enacted: “The said Raleigh & Augusta Air-Line Railroad Company, may at any time hereafter discharge the bonds of the Chatham Railroad Company, deposited with the Public Treasurer in the same manner and not otherwise, as the said Chatham Railroad Company is now authorized by law...