#### N. E. EDGERTON et al. v. CHARLES F. KIRBY et al.

(Filed 18 October, 1911.)

1. Mandamus — Road Commissioners — Vacancy—Issue as to Election —Cause Transferred to Term — Interpretation of Statutes.

In a suit for mandamus brought by two members of a board of road commissioners of a township to compel the other two members to meet with them and elect a fifth member to fill a vacancy caused by the resignation of one of them, the pleadings raised an issue as to whether a certain person had been lawfully elected to fill the vacancy by a majority vote at a previous meeting, the plaintiffs contending that the vote was a tie and that the one claimed to have been elected, and who was acting with the defendant commissioners, was a usurper with mei’ely a colorable title: Held, the issues presented a question of fact as to whether the one claiming to have been elected to fill the *348vacancy caused by tbe resignation of tbe member of tbe board bad received a majority of tbe votes at tbe meeting, or whether the vote was a tie, resulting in no election; and an order made by the judge transferring tbe cause to the Superior Court at term for tbe trial of the issue joined was correct. Revisal, sec. 824.

2. Mandamus — Public Officer — Legal Duty — Discretionary Powers.

Generally, mandamus will lie to compel á public officer to perform a legal duty as distinguished from a discretionary power, if the legal duty is mandatory.

3. Mandamus — Extraordinary Remedy — Remedy at Law.

Mandamus is an extraordinary remedy, and the writ will not issue except in cases of necessity, where no other adequate remedy is available; and when an issue of fact is raised by the pleadings the determination of which may conclude the matter, the issuance of the writ should in the meanwhile be denied.

4. Mandamus — Power of Courts — Judicial Discretion — No Other Adequate Remedy.

The issuance of the writ of mandamus is within the judicial and not the arbitrary discretion of the court, and where there is ■ a right with no other adequate remedy, this writ should not be denied, if it is the proper remedy.

Appeal from JohNstoN, from order of Peebles, J., beard at chambers in Goldsboro, 22 July, 1911.

Tbis is a suit for mandamus to require tbe defendants, except defendant Green, to meet witb tbe plaintiffs and to elect tbe seventh member of tbe Board of Road Commissioners of Selma Township. Tbe complaint alleges that after M.' 0. Winston, the seventh member of said board, resigned, tbe six remaining members met, and there being a tie vote (three voting for defendant Green and three voting for H. E. Earp), tbe chairman, N. E. Edgerton, being doubtful as to bis power to break tbe tie, the meeting was adjourned. It is further alleged that tbe three defendant commissioners, thereafter, met witb tbe defendant W. A. Green and Undertook to perform tbe duties of road commissioners of Selma Township, and that tbe defendant Green has no right or title to said office, being a usurper thereof in palpable disregard of tbe law; that his bolding tbe same is merely colorable, and that be should be removed from *349tbe office so unlawfully usurped by bim. Tbe complaint further demands tbat tbe other defendants shall'be required by tbe court to meet at tbe call of tbe chairman and elect and induct tbe seventh commissioner into office, and a prayer accordingly is inserted in tbe complaint.

Tbe defendants answered tbe complaint and alleged tbat tbe defendant W. A. Green is bolding tbe office of road commissioner of Selma Township; tbat be was elected at the first meeting of tbe board, when M. C. Winston resigned, by a vote of three in favor of Green and two .in favor of Earp.

Tbe matter came up for bearing before Hon. R.XB. Peebles, judge, and upon motion of tbe plaintiffs, -under section 824 of tbe Revisal, to transfer tbe case to tbe Superior Court at term for trial of tbe issues thus joined between tbe parties, whereupon tbe following order was entered:

“Tbe court being of tbe opinion tbat tbe whole matter depends upon whether W. A. Green got three votes and bis adversary got two votes in tbe meeting of tbe Board of Road Commissioners of Selma Township held on 6 May, 1911, tbe motion of the defendants is denied, and defendants except and appeal to tbe Supreme Court. Plaintiffs move and request tbat tbe issue raised by tbe pleadings as to tbe number of votes received by said Green and Earp be submitted to a jury at tbe next term of tbe Superior Court of Johnston County, which convenes on 11 September, 1911, upon tbe pleadings herein filed. This motion is granted, and it is ordered tbat this action be and tbe same is hereby transferred to tbe Superior Court of Johnston County for trial by jury at tbe September Term, 1911, of said court.” Defendant excepted and appealed.

Aycoclc .& Winston for plaintiff.

Abell & Ward for defendant.

. WalKBe, J.

Tbe order of Judge Peebles was correct. There wa§ ¿nothing else for bim to do, except what be did, in view of tbe express provision of tbe statute, Revisal, sec. 824, requiring the’judge, when an issue of fact is raised by tbe pleadings, to continue tbe action until it can be tried by a jury upon tbe *350issue thus joined between the parties. Sucb an issue was plainly and directly raised by the pleadings. Plaintiffs alleged that W. A. Green was never legally elected a member of the board of road commissioners, but is an usurper of that office without the shadow of right or title to it, and they ask that he be so declared and that the three defendant commissioners be required to meet in joint session with plaintiffs and elect the seventh commissioner to fill the vacancy created by the resignation of M. C. Winston, in order that the business of the board may be transacted. Defendant squarely denies the allegation and, on the contrary, avers the truth to be that W. A. Green was duly elected a commissioner by a majority vote and is entitled to hold the office and exercise its functions. This presents a preliminary issue to be determined before we reach the question whether the plaintiffs are entitled to a mandamus for the purpose of compelling the three defendant commissioners to meet with them to elect the seventh commissioner and complete the personnel of the board. If the jury find that W. A. Green was duly and lawfully elected, 'then there is no necessity for a mandamus, unless he and his codefendants should refuse to meet with the plaintiffs and discharge the duties imposed upon the board by law. We will discuss and decide that question when we come to it, and not prematurely and perhaps unnecessarily. The case of Rhodes v. Love, 153 N. C., 468, so much relied on by the appellant, does not, we think, have any present bearing upon the case. Whether it will or not, if the jury find that W. A. Green was not duly elected a member of the board, is a matter upon which we prefer not to express an opinion at this time, for it may become a moot question.

It may be said, generally, that if a public officer fails to perform his legal duty to the public, mandamus will lie to compel him to do so, if it is a mandatory one, but not to control the exercise of a discretion given to him, for it is the nature of a discretion in certain persons that they are to judge for themselves, and, therefore, no court can require them to decide in a particular way or review their judgment by way of appeal, or by any proceeding in the nature of an appeal, since the judg*351ment of tbe persons to whom tbe discretion is confided by law would not tben be tbeir own, but tbat of. tbe court under whose mandate or compulsion tbey gave it. Attorney-General v. Justices of Guilford, 27 N. C., 315; Barnes v. Commissioners, 135 N. C., 27. If W. A. Green was not elected, tbe six members of tbe board must meet and elect a successor to W. A. Green, and in other respects proceed with tbe business of the board. “A mandamus lies only for one who has a specific legal right, and who is without any other adequate legal remedy.” 1 Chitty Gen. Pr., 790; S. v. Justices, 24 N. C., 430. It is an extraordinary remedy, and tbe court will not grant it unless in a case of necessity. Why should we issue tbe writ in this case, where the necessity for it may never arise? But bow can we determine tbat tbe necessity exists, until we bear from tbe jury and are informed as to tbe facts? Tbe point, as to when tbe writ wilf lie where there is discretion, is sharply accentuated by Tapping in bis work on Mandamus, star p. 15, where be says: “The writ does not lie to command tbe .justices to license a victualler to sell ale, notwithstanding it was suggested tbat tbe refusal proceeded from a mistaken view of tbeir jurisdiction, and also notwithstanding a very strong case of partiality was made out, for it is a matter entirely within tbeir discretion. Tbe proper course in such a case is to move for a criminal information; ñor does it lie to rehear an application for license which tbey have refused because of a mistaken notion as to tbe law.” As to tbe power of a court of general jurisdiction to issue a mandamus for tbe purpose of controlling tbe discretion of a public officer, tbe case of U. S. v. Seaman, 17 How. (U. S.), 225, and Gaines v. Thompson, 7 Wallace, 347, may well be consulted, for tbey state tbe doctrine with clearness and accuracy. Tbey deny tbe power where there is a discretion left to tbe officer as to bow be will perform tbe duty, and so we have held. It has been said tbat, in this country, tbe writ of mandamus has not been regarded as a prerogative one, as in England, according to Blackstone, tbeir great commentator; and yet, even here, it so far partakes of tbe nature of a prerogative writ tbat tbe court has tbe power to issue or withhold it, according to tbe sound judgment; and if tbe writ, in its consequences, *352would manifestly be attended with, hardship and difficulties, the court may, and even should, refuse it; but this discretion lodged in the court is not an arbitrary one; it is a judicial discretion, and when there is a right, and the law has established no adequate and specific remedy, this writ should not be denied. Prop, of St. Lukes Church v. Slack, 7 Cush. (Mass.), 226; Tapping on Mandamus, p. 18. This author says that in no case does the writ lie “to compel a tribunal, judicial or administrative, to render any particular judgment or decision, or to set aside one already rendered, but only to enforce the performance of a ministerial or mandatory duty. The writ is appropriate to compel subordinate courts or bodies (or even individuals, in a restricted class of cases) to proceed and determine matters pending before them and properly within their cognizance or jurisdiction, but it cannot compel them to do that which the law leaves them to decide according to their best judgment and discretion. Tapping, 35, 36. The plaintiff must try other ordinary remedies before he resorts to this unusual writ of compulsion. Reg. v. R. R., 6 Q. B. R., 70 (Patterson, J., one of the greatest of the judges of the King’s Bench, delivering the opinion of the Court, in the absence of the Chief Justice). It seems that the duty which is asked to be performed must be mandatory, before the court will send out so drastic a writ. It cannot be said, in this case, that every" sufficient remedy of the law has been exhausted. In fact, the plaintiff is not even on the threshold of obeying that principle which requires that every other remedy should be tried and that all preliminary questions of fact should be decided before the court will listen to his prayer for this extraordinary writ. It is seldom needed and rarely-granted. The citizen must perform his duty to the public, both as a simple member of society and as a public officer, and if he fails in the latter capacity to do what the law requires of him, he cannot only be compelled by mandamus to do his duty, but he is criminally liable for not performing it. "Where the law reposes discretion, it excludes the writ of mandamus as a means of controlling it, and leaves it to be exercised freely and untrammeled, save by the injunction that the officer must perform the duty required of him, honestly and fairly.

No error.