State ex rel. County Commissioners v. County Commissioners , 18 S.C. 597 ( 1882 )

Opinion By

Mr. Justice McIver,

This was a petition presented to the court in behalf of the relators to require the respondents to levy a tax upon the property within certain limits of Edgefield county, and to pay the proceeds into the hands of the county treasurer of Edgefield, to be held subject to the order of relators; and for damages and costs. The facts stated in the petition were admitted by the respondents, and legal issues only were raised by the return. This application was based upon the act of 1880 (17 Stat. 412), which authorized the citizens of a designated section of Edgefield county, adjoining the county of Abbeville, to fence in their territory, and which extended to such territory the provisions of the stock law then in force as to Abbeville and other counties. 16 Stat. 689. For the purpose of keeping this fence in repair, the county commissioners of Edgefield were to procure from the county commissioners of Abbeville the per centum annually levied as a tax in Abbeville for keeping fences in repair, and to levy upon the property within the said territory of Edgefield the same tax, and not to exceed such per centum of Abbeville, and the proceeds of such tax to place in the hands of their county treasurer, subiect to the order of the county commissioners of Abbeville. Held—

1. That the necessary inference was that the duty of keeping this fence in repair was charged upon the county commissioners of Abbeville county; that the fence was not for the benefit of Edgefield county, and the tax was not a county tax, but the proportion properly chargeable upon that territory of Edgefield which, at their own request, was included within the benefits enjoyed by the county of Abbeville, and none of the rights or powers given by the constitution to the county commissioners of Edgefield were delegated to the county commissioners of Abbe-ville.

2. That this was not a claim against the county of Edgefield, and therefore to be audited, but an application to require the county commissioners of that county to perform a specific duty imposed upon them by an act of the legislature.

3. That the duty to be performed by the county commissioners of Edgefield did not involve the exercise of judgment or discretion, but was purely ministerial, and therefore enforceable by mandamus.

4. The relators are entitled to neither damages nor costs. State, ex rel. Bull, v. County Treasurer, 10 8. C. 40.

Petition granted, except as to damages and costs, and writ ordered.