State Ex Rel. Betts v. City Of Raleigh
| Decision Date | 09 October 1906 |
| Citation | 142 N.C. 229,55 S.E. 145 |
| Parties | STATE ex rel. BETTS et al . v. CITY OF RALEIGH. |
| Court | North Carolina Supreme Court |
Under Acts 1903, p. 288, c. 233, providing for the holding of a local option election on 30 days' notice in any year in which a petition therefor may be filed, but not within 90 days of any city, county, or general election, the court cannot by mandamus compel the holding of a local option election during the year subsequent to the filing of the petition therefor, nor within 90 days of any city, county, or general election; mandamus not being granted to compel a prohibited act.
[Ed. Note.—For cases in point, see vol. 33, Cent. Dig. Mandamus, §§ 41, 42.]
Where, pending proceedings by mandamus to compel the holding of a local option election, authorized by Acts 1903, p. 288, c. 233, the application to perform the duty imposed by the act or the right of the relator to exact performance has expired by lapse of time, mandamus will be denied.
[Ed. Note.—For cases in point, see vol. 33, Cent. Dig. Mandamus, § 48.]
Appeal from Superior Court, Wake County; Webb, Judge.
Mandamus by the state, on the relation of S. J. Betts and others, against the city of Raleigh to compel the holding of a local option election. From a judgment directing the Issuance of the writ, defendant appeals. Proceedings dismissed.
Proceedings in mandamus to compel the board of aldermen of Raleigh to order an election to determine the question as to whether prohibition shall be established in said city under the provisions of Acts Gen. Assem. 1903, p. 288, c. 233. From a judgment directing the issuing of the writ, defendants appealed.
W. B. Snow, for appellant.
W. A. Montgomery and J. C. L. Harris, for appellees.
It is contended by the defendants that the form of the petition presented to the board of aldermen is not in compliance with the act, in that it fails to designate the questions which the petitioners desire to be voted upon at the election. In the view we take of the case it is unnecessary for us to pass on that contention. The writ of mandamus should have been denied, for the reason that it is never granted to compel an unlawful or prohibited act. The statute is express in terms and unmistakable in meaning. The election petitioned for is required to be held in same year in which the petition is filed. It cannot be held during the subsequent year. The statute also...
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