Opinion
7285
August 28, 1909.
Petition by the State against A.W. Jones, Comptroller General, to Associate Justice Hydrick for writ of mandamus.
The petition alleges that the respondent is ex officio a member of the State Board of Canvassers and the board had been duly called to meet on August 26th, at which time he met with the board. The board adjourned on that day to meet on the following day to consider certain protests then before the board. In furtherance of said adjournment the board met, but respondent appeared at intervals during the day and only for the purpose of thwarting the proceedings, capriciously and arbitrarily absented himself without just excuse whenever it became apparent a quorum would be necessary to proceed with the business, and by breaking the quorum prevented the board from proceeding with the discharge of its duties.
The return of the respondent alleges that the board was called upon to canvass the returns of a special election, which duty he was willing to perform, but the other members of the board having decided to hear a contest raising the constitutionality of the act under which the special election was held and the board was called to act, and he being of opinion the board had no power to pass on this issue, declined to sit during discussion thereon.
Messrs. Jno. P. Grace, Walter Hazard, and Hunter A. Gibbes, for petitioner. Mr. G. Duncan Bellinger, contra.
August 28, 1909.
On hearing the return of the respondent, A.W. Jones, to the alternative writ of mandamus issued by me on the 27th day of August, A.D. 1909, whereby he was required to perform the acts therein enjoined, or, failing to do so, to appear before me at the consultation room of the Justices of the Supreme Court, in the city of Columbia, S.C. at 10 o'clock A.M., on this 28th day of August, 1909, then and there to show cause why the said writ should not be made peremptory; and it appearing upon the hearing of said return that the respondent has failed, and refused and still fails and refuses, to perform the acts enjoined upon him by said writ, and no just cause or excuse for such failure and refusal having been shown by the respondent:
Now, on motion of the attorneys for the State, Messrs. J. P. Grace, Walter Hazard and Hunter A. Gibbes, after hearing G. Duncan Bellinger. Esq., attorney for the respondent, it is
Ordered and adjudged: That the return of the respondent is insufficient in law, and that the writ is hereby made peremptory and that the respondent, A.W. Jones, do forthwith appear and attend with the other members of the State Board of Canvassers and proceed to the deliberation upon and the determination of all matters pending before said board.