C. Elements Defined

• Library: Elements of Civil Causes of Action (SCBar) (2021 Ed.)

C. Elements Defined

1. A Duty

The applicant for the writ must show that the respondent has a duty to perform the act.⁷⁰ That duty must be indisputable and plainly defined,⁷¹ and the respondent must have the ability to perform it.⁷² It appears that if there is some unmet precondition to the duty to act, mandamus will not lie.⁷³ Where the only doubt that clouds the issue is the construction of a statue that imposes the duty, the writ will issue if the court decides it imposes the duty asserted,⁷⁴ otherwise, it will be denied.⁷⁵ Mandamus should not lie to compel a respondent to "correctly" perform a duty that has been performed, but that the petitioner claims had been improperly executed.⁷⁶ Indeed, as a general rule, performance of the act in question moots the case.⁷⁷

While not explicitly stated in the element, it is implied that the respondent must have failed to perform the duty at issue and that the petitioner must allege that failure.⁷⁸ Indeed, in one case the South Carolina Supreme Court said that mandamus is based on the theory that an officer charged with a purely ministerial duty can be compelled to perform that duty in case of refusal.⁷⁹ Refusal implies a demand, and some early cases appear to require a prior demand by the petitioner.⁸⁰

In attempting to understand the meaning of "duty," it is useful to examine some of the cases over the years in which mandamus was granted. These have concerned both state and local boards and officials. The Department of Insurance, for example, was required under statutes then in effect, to issue notices of filings by automobile insurers requesting rate increases that, would, in turn, trigger rights to public hearings on the proposed increases.⁸¹ The state Comptroller General was ordered to issue directions to County Auditors to levy a tax for payment of interest due on bonds issued by the State.⁸² The State Treasurer was directed to redeem a state bond.⁸³ A state board was required to issue a pharmacist's license.⁸⁴ In general, a governmental agency may be compelled by mandamus to pay a salary.⁸⁵

County governments and officials have often been subject to mandamus. The South Carolina Supreme Court ordered a County Council to consider all submitted budgets for one week, after which it was further ordered to either adopt or reject them and to approve and adopt a budget by a set date.⁸⁶ A county was compelled to pay money owed the petitioner.⁸⁷ A county commission was ordered to execute bonds provided for by statute.⁸⁸ A county had a duty to apply funds in its treasury not otherwise appropriated to payment of a judgment rendered against it.⁸⁹ A county auditing committee was ordered to audit the vouchers of the Secretary of a Sanitary and Drainage Commission.⁹⁰ A county supervisor was ordered to publish the statement of claims audited by the board of county commissioners of that county as required by statute.⁹¹ A county sheriff whose office had been declared vacant by the Governor could be directed to surrender that office.⁹² A sheriff was directed by mandamus to return property seized as contraband.⁹³ A sheriff could be compelled to make an arrest pursuant to an outstanding warrant.⁹⁴

Cities and towns have also been the object of mandamus. A municipality was directed to provide water and sewer service to a development, without annexation as a precondition, pursuant to an easement agreement assigned to the petitioning property owner.⁹⁵ A city was ordered to appoint commissioners who, under a state statute, would determine the extent of property damages caused by highway improvements.⁹⁶ A holdover town council was directed to provide for municipal registration of the electors of the town and hold a special election — as required by law — for a mayor and four aldermen to fill existing vacancies.⁹⁷ A writ was granted that directed a township highway commission to turn over books, records, and money in its possession, to a county advisory board.⁹⁸

Mandamus has been directed against school districts. The treasurer of a school district board of trustees was directed to pay over to the county treasurer money received by him from the sale of school district bonds issued to buy a lot and build a new schoolhouse, together with the accumulated interest.⁹⁹ Where the trustees of a school district issued pay warrants to a teacher and the school had sufficient funds to pay them, the County Superintendent of Education had no discretionary power to refuse approval of the warrants and was ordered to do so.¹⁰⁰ One trial court concluded that parties challenging the failure of a school board to hold a meeting to consider attendance guidelines for almost 15 months should have filed a writ of mandamus compelling the board to act if the delay was unacceptable, although the Court of Appeals later seemed dubious and said that mandamus may or may not have been the proper procedural step.¹⁰¹

While most mandamus actions concern governments, officials of a political party whose appointments were revoked by the party executive committee were required by mandamus to surrender their offices as well as the books, records, and funds of those offices.¹⁰²

Applications for mandamus often concern significant matters of public policy — rate increases by a regulated industry; road construction; governmental budgets; and, elections — but rarely the compelling personal tragedies encountered in many tort actions. An exception is the 1931 case of Green v. West.¹⁰³ The petitioner's husband was taken from the custody of the sheriff of Oconee County and lynched. She obtained a judgment against the county under the state lynching statute. The county, however, had no unappropriated funds on hand to pay the judgment and at that time a county lacked authority to levy taxes. The petitioner sought a writ of mandamus to compel the county to levy a tax on the taxable property in the county sufficient to pay the amount of the judgment. The court held that since the county had no authority to levy taxes, it had no power to compel the officers of the county to levy and collect a tax to pay the judgment. It could, and did,¹⁰⁴ however, compel the county supervisor to include a sum sufficient to pay the judgment in the estimate he submitted to the legislature of the amount necessary to meet the county expenses.¹⁰⁵ The court, to its credit, was obviously moved by the petitioner's plight, and by what it called the "great earnestness" of counsel, and entertained a petition for rehearing. Ultimately, however, it found no basis for departing from its ruling and refused the petition for rehearing.

2. A Ministerial Act

The petitioner must show that the act that he or she wants the court to compel is a ministerial one.¹⁰⁶ The question is not whether the respondent has in general some measure of discretion or exercised discretion in the matter at issue, but whether the respondent had discretion in that matter.¹⁰⁷ When performance of the duty rests in discretion, mandamus cannot rightfully be issued.¹⁰⁸ However, there are circumstances in which a court may employ mandamus to compel an administrative agency — or a local board¹⁰⁹ — to act by exercising its judgment or discretion.¹¹⁰ And, mandamus may still lie where an exercise of discretion is shown to be arbitrary or an abuse of discretion,¹¹¹ in which case the burden is on the petitioner to show an arbitrary exercise or an abuse of discretion.¹¹²

A respondent may have exercised its discretion and appear to have only a ministerial duty remaining, but if the respondent may yet reconsider its decision, mandamus will likely be inappropriate.¹¹³ Further, the fact that the respondent declares its willingness to act on performance of certain conditions does not mean it has exhausted its discretion and has only a plain ministerial duty remaining that may be compelled by mandamus.¹¹⁴ Even though a respondent may have a plain ministerial duty to perform an act, the timing may yet remain within his or her discretion and the court will deny mandamus requiring performance of the act within a particular time frame.¹¹⁵

One very early case provides a warning to governmental bodies.¹¹⁶ In that case a town council refused to grant a request for a license. The council gave as the reason for its refusal — and had recorded in the council minutes — its belief that recently passed state legislation prohibited it from issuing the requested license. When the license applicant sought a writ of mandamus, the town attempted to defend by characterizing its refusal to issue the license as an exercise of discretion. The court refused to entertain that argument. It said that the town, having asserted its lack of discretion, could not now be heard to say it was exercising its discretion and it was "estopped from raising this additional ground of refusal."

The South Carolina Supreme Court explained the concept of "ministerial duty in Redmond v. Lexington County Sch. Dist. No. 4,¹¹⁷ where it said that a duty is ministerial when it is "... absolute, certain, and imperative, involving merely the execution of a specific duty arising from fixed and designated facts" and when it is "... defined by law with such precision as to leave nothing to the exercise of discretion."¹¹⁸ In another case, the Court of Appeals described a ministerial duty as "... one which a person performs in obedience in a mandate of legal authority without regard to the exercise of his own judgment upon the propriety of the act to be done."¹¹⁹

Among the duties that are generally considered ministerial are: calling an election;¹²⁰ organizing and conducting an election;¹²¹ paying an audited claim,¹²² paying a judgment;¹²³ paying funds received by one public official that are to be paid to another;¹²⁴ assessing property liable for taxes;¹²⁵ following a publication requirement;¹²⁶ issuing a voucher for a condemnation award;¹²⁷ providing town water and wastewater services pursuant to a contract;¹²⁸ and, redemption of a state bond.¹²⁹ In some cases in...