Johnston v. Board of Commissioners

Pearson, C. J. There is no error in the order by which the rule is discharged. We concur with his Honor in the opinion that the answer to the rule was responsive and sufficient. *103 We are inclined to the ©pinion that the rule was improvidently granted in the first instance. It seems to have proceeded upon the ground that the return to the writ of mandamus was “ frivolous” and not fit to be noticed. Otherwise, the -rule would have been, to show cause why a more lull and perfect-return should 'not be made, the first return being considered insufficient and not tally responsive. Instead of this the rule is, that th-e defendants show cause why they should not be attached tor disobedience oí the mandate, &c., treating the return to the writ of mandamus as a nullity. We are not required to express an opinion upon this subject, but we are at liberty to say tliat, in our opinion, the -return is both responsive and sufficient, and that the Commissioners seem to hare done «01 that-could have been expected under the circumstances. The Justices of the Peace ot the county had tailed to levy and collect an annual tax, to keep down the interest ot the bonds, as it was their -duty to do. When the defendants, “ the Board of Commissioners,” succeeded to the -office and duties of the Justices of the Peace in this regard, .and found a very large amount of interest in arrear, was it the duty ot the Board ot Commissioners to levy and collect a tax •in one year, sufficient to pay off the accumulated interest for some fifteen years? or did they have a discretion to endeavor to break the force of this burden upon the tax-payers of the county, by issuing county bonds to raise a part of the amount called for, and levying a tax for the residue ? We think the Board of.. Commissioners had this discretion, and it seems to have been exercised in a discreet manner. Should the plaintiff be under the necessity ef faking other proceedings in order to get his money, it may he well to submit to his counsel this question, Must not a writ of mandamus to “ the Board of Commissionersof a -County ” be máde returnable to the Superior Court of that County? The propriety of this, in a general point -oí -v-iow, will occur to every one. Aro the Commissioners-of Oeaveland to he required to make *104 return to writs of mandamus in all and every county of the State, wherever a holder of one of the coupons of a county bond happens to reside ? C. C. P., sec. 67, seems to apply. “Against a public officer,” for an act done by him by virtue of his office, the proceeding shall he in the county where the act is done. More particularly should this he so, m the .writs of quo warranto and mandamus, where an official act of usurpation, or a failure to do some act which the duties of the office require, constitutes the charge, and in effect amounts to a criminal action, or an action to subject the party to pains and penalties. There is no error. Pee Curiam. 3udgment affirmed.