#### BETTS v. RALEIGH.

(Filed October 9, 1906).

Mandamus — Prohibition—Petition for Election.

The provisions of ch. 233, Acts 1903, which require the election petitioned for. to he held in the same year in which the petition is filed and prohibit the holding of the election within ninety days of any city, county, or general election, effectually bar the holding' of the election petitioned for in this case, as the writ of mandamus is never issued to compel an unlawful or prohibited act, and the fact that the petitioners were compelled to resort to legal proceedings to compel the defendants to order the election is immaterial.

AotioN for mandamus by the State on the relation of S. J\ Betts and others, petitioners, against the city of Ealeigh, pending in the Superior Court of Wake and heard upon complaint and answer by -Judge James L. Webb, at chambers, in the city of Ealeigh on 24 September, 1906.

This was a proceeding in mandamus to compel the Board of Aldermen of the city of Ealeigh to order an election to determine the question as to whether prohibition shall be established in said city under the provisions of the Act of the General Assembly of 1903, ch. 233. From a judgment directing the issuing of the writ, the defendant appealed.

W. A. Montgomery and J. G. L. Harris for the plaintiff.

W. JB. Snow for the defendant.

Be.owN, T.

It is contendéd by the defendant 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.

*230Tbe statute is express in terms and unmistakable'in meaning. Tbe election petitioned for is required to be beld in tbe same year in wbicb tbe petition is filed. It cannot be beld during tbe subsequent year. Tbe statute also prohibits tbe bolding of tbe election witbin ninety days of any city, county, or general election. These provisions of tbe statute are as binding upon tbe courts as upon any other departments of tbe State Government, and effectually bar tbe bolding of tbe election petitioned for. Tbe fact that tbe petitioners aver they were compelled to resort to legal proceedings to compel tbe defendants to order tbe election is immaterial. Had tbe mandamus proceedings been commenced much earlier, and before their final determination tbe obligation of defendants to perform tbe alleged duty required of them, or tbe right of tbe relator to exact its performance, expired by lapse of time, tbe relief will be denied, since courts will not grant tbe writ when, if granted, it would be fruitless, or require tbe performance of an illegal or prohibited act. High on Extraordinary Remedies, p. 20; Mauney v. Commissioners, 71 N. C., 486; Topping on Mandamus, p. 67.

Proceeding Dismissed.