Stacy v. Hammond

• Decision Date: 15 April 1895
• Citation: 23 S.E. 77,96 Ga. 125
• Parties: STACY et al. v. HAMMOND, Ordinary.
• Court: Georgia Supreme Court

23 S.E. 77

96 Ga. 125

STACY et al. v. HAMMOND, Ordinary.

Supreme Court of Georgia

April 15, 1895

Syllabus by the Court.

Where, at the time an application for mandamus was heard by the judge of the superior court, the time had passed within which the official duty, the performance of which was sought to be compelled, could be performed, the court properly denied a mandamus absolute. Mandamus will not be granted when it is manifest that the writ would, for any cause, be nugatory or fruitless.

Error from superior court, Spalding county; J. L. Hardeman, Judge.

Application by C. I. Stacy and others for mandamus against E. W. Hammond, ordinary of Spalding county. Mandamus denied, and petitioners bring error. Brought forward from the last term. Code, §§ 4271a-4271c. Affirmed.

T. E. Patterson, for plaintiffs in error.

Lloyd Cleveland, for defendant in error.

ATKINSON, J.

It appears that on July 14, 1894, a petition bearing the names of the requisite number of citizens was presented to the ordinary of Spalding county, asking that an election be ordered, in terms of the general local option law, to determine whether spirituous liquors mentioned in the sixth section of that act should be sold within the limits of that county. For certain reasons, upon the sufficiency of which we are not now called upon to pass, the ordinary declined to order that election. A petition for mandamus was presented to the judge of the superior court, and on the 15th day of August next thereafter, a mandamus nisi having in the meantime been granted, the petition came on to be heard. It was demurred to, among other reasons, upon the ground that, even if allowed, the mandamus absolute must prove nugatory and fruitless. This demurrer was sustained, and mandamus absolute denied. The act provides that the election shall be held within 40 days after the reception of the petition. It requires that four weeks' notice be given of the time of holding the election. It would, therefore, under the provisions of the act, have been impossible to have held the election within 40 days from the date of the reception of the petition by the ordinary, even though the mandamus absolute had been granted. This writ will never be granted when it would be fruitless or nugatory, and for this reason the judgment of the circuit judge in refusing a mandamus absolute must be sustained. Let the judgment of the court below be affirmed.