On the 16th February, 1898, the petitioners, R.C. Plowden and John W. Clark, as board of school trustees of School District No. 5, issued a school certificate, wherein they directed the county treasurer, the respondent, Samuel J. Bowman, to pay to W. W. Tulmiler or bearer, $198, said sum being allowed for three copies of Evans' Arithmetical Study, edition No. 156, and three copies, edition No. 120, approved and adopted by State Board of Education, May 15th, 1897, and charge the same to the account of the free school funds of this school district. This school certificate was supported by the affidavit *Page 149 of W.W. Tutwiler, that the account for school supplies was just, true and unpaid, that such school supplies had been actually delivered; such affidavit was made before said Robert C. Plowden in his official character as school trustee, and being a part of said school pay certificate, on the 16th day of February, 1898; W.S. Richbourg, as county school commissioner for Clarendon County, S.C. on the 18th day of February, 1898, indorsed his approval on said school pay certificate, and on the same last day the payer of said school pay certificate transferred the same for value to A. Levi, a citizen of Clarendon County, S.C. who presented the same for payment to the respondent, Samuel J. Bowman, as treasurer of Clarendon County, S.C. who declined to pay the same on account of lack of funds in his hands at that time payable to School District No. 5; but subsequently, to wit: on the 12th day of December, 1898, the said treasurer, Samuel J. Bowman, paid the said school certificate in full to the said A. Levi. Before the payment was made, however, all three members of the board of trustees of said School District No. 5 gave verbal and written notice to said Samuel J. Bowman, as treasurer, not to pay said school certificate, on the ground that the same had been issued to W.W. Tutwiler on the condition that the same, before being effectual, should be agreed to and approved by the petitioner, J.H. Burgess, and that said W.W. Tutwiler, in disregard of his agreement and in fraud, had presented the same for the approval of W.S. Richbourg, as county school commissioner of Clarendon County, and obtained his approval thereof, and thereafter transferred the same for value to A. Levi. When the board of trustees for School District No. 5 served their notices upon the treasurer, Samuel J. Bowman, he requested and insisted that they should take some proceedings in law to enjoin his payment of said school certificate. This they neglected to do. Thereafter, under the advice of his counsel, learned in the law, the said county treasurer paid the claim. On the 17th May, 1900, the said board of trustees for School District No. 5 presented their petition in the *Page 150 Court of Common Pleas for Clarendon County, wherein they alleged all of the foregoing facts against the said county treasurer, Samuel J. Bowman, as defendant, and prayed that the writ of mandamus might issue, requiring said county treasurer, in effect, to "change his books, that his school district might have credit therein for the said sum of $198, which was improperly paid to W.W. Tutwiler's transferee, A. Levi." The said Samuel J. Bowman answered the rule. The proceeding came on to be heard by Judge Aldrich, who denied the petitioners any relief whatever, and dismissed their petition. From this decree of Judge Aldrich, the petitioners now appeal to this Court upon the following grounds:
"1. Because his Honor erred, it is respectfully submitted, in deciding that `It was not the "specific duty" of the treasurer, `imposed by law,' to refuse to pay said warrant. (a) Because the warrant having been procured by fraud and breach of trust, was void, and after he had notice of such fraud, it was his specific duty to refuse payment. (b) Because the said warrant was void, ab initio, because it was not made by the board sitting in session as a board, and being a void warrant, could impose no duty and convey no rights. (c) Because the respondent had no right or discretion to refuse the plain positive instructions of the board of school trustees, contained in the prohibitory notice served on him by two members of the board.
"2. Because his Honor erred, it is respectfully submitted, in deciding that mandamus is not the proper remedy in this case; whereas, it is respectfully submitted: (a) There is no adequate remedy at law which can be pursued by any one against the said treasurer until such time as he goes out of office. (b) The pleadings and evidence show that the remedy desired is a change made in the books of the said treasurer, as they, at present, are incorrect, and further show how they are incorrect.
"3. Because his Honor erred, it is respectfully submitted, in deciding: (a) That it is the duty of the county treasurer to pay the warrants of the school trustees, even if the same *Page 151 are void. (b) That it was the duty of the respondent to disregard the positive instructions of the board of school trustees prohibiting his paying said warrant.
"4. Because his Honor erred, it is respectfully submitted, in deciding that the county treasurer is bound to accept as correct the facts appearing upon the face of a warrant, after actual knowledge that said statement is untrue, and that said warrant is a forgery and is void.
"5. Because his Honor erred, it is respectfully submitted, in deciding that it was the legal duty of the relators to have instituted proceedings to avoid the payment of the said warrant; whereas, if the said warrant was void, the said Samuel J. Bowman should not have paid same, as no rights could be claimed under it, and even if the said warrant was voidable, only then the notice signed by J.H. Burgess and R.C. Plowden, in their official capacity as trustees, was sufficient to avoid same, and to hold said Samuel J. Bowman, as county treasurer, harmless.
"6. Because his Honor erred, it is respectfully submitted, in deciding that the said warrant was legal on its face, when the pleadings and testimony showed that it was drawn when there was no money then actually to the credit of the said board on that account in the hands of the county treasurer.
"7. Because his Honor erred, it is respectfully submitted, in deciding — if his decree herein can be construed as so deciding — that the county warrant, a copy of which he sets out in his decree, is a negotiable instrument, and that an innocent purchaser for valuable consideration is protected by the application of the rules of law applicable to negotiable instruments; whereas, it is submitted, that a county warrant of the nature of this one is nothing but an order for the payment of money, which is revocable by the officers drawing same, is transferable but not negotiable, and the purchaser of one takes it subject to all the defects and all the equities which could be set up against the original payee.
"8. Because his Honor erred, it is respectfully submitted, in discharging the respondent and refusing the peremptory *Page 152 writ of mandamus prayed for, because: (a) The pleadings and evidence show that the respondent failed and refused to perform a plain ministerial duty as county treasurer after the proper demand had been made upon him to do so. (b) Because mandamus was the only remedy which the relators had, and is the proper remedy."
We will now briefly express our views upon the questions presented by the grounds of appeal as presented for our consideration. The true nature of mandamus is very correctly set forth in the 13 vol. of the Encyclopaedia of Pleading and Practice, 487: "A writ of mandamus is a command issuing from a court of law of competent jurisdiction in the name of the State or sovereign, directed to some inferior court, or to some officer, corporation or person, and requiring the performance of a particular act or thing therein specified, which pertains to the duty of such court or person." Or as the law governing mandamus, as laid down inMorton, Bliss Co. v. Hoge, Comptroller General, 4 S.C. 472: "To be entitled to the writ, the relators must show that the respondent is bound to the performance of some specified duty imposed by law of a ministerial character, and in the performance of which the relators have a legal interest." Is the Court of Common Pleas possessed of jurisdiction to hear and determine applications for writs of mandamus? The Constitution of this State, section 15, of article V., provides: "The Court of Common Pleas shall have original jurisdiction, subject to appeal to the Supreme Court, to issue writs or orders for injunction, mandamus, habeascorpus and such other writs as may be necessary to carry their powers into full effect * * *"
We will now determine if the writ should issue. We are inclined to take a different view of this proceeding from that taken by the Circuit Judge, for it seems to us that there was a duty owed by the respondent as county treasurer to School District No. 5; he was the custodian of the funds belonging to the school district; he was bound to know the law governing the disbursement of the funds of that school district; he *Page 153 was bound to know that there were no funds in his hands as treasurer belonging to that school district on the 18th February, 1898, and that any order drawn on him as treasurer by the trustees of School District No. 5 when there were no funds belonging to that school district in his hands, was void under the law. Therefore, when he afterwards, to wit: 12th December, 1898, paid this claim under the protest and the notice of its illegality by said board of trustees of School District No. 5 not to pay said void order, he violated his duty to such School District No. 5, which violation consisted in reducing the fund belonging to such school district to the extent of $198, so improperly paid; therefore, he was bound to replace that exact sum of $198 to the credit of said school district. Such act was a plain ministerial duty, for which mandamus would lie to compel performance thereof. As was well said by Mr. Justice Eugene B. Gary, in the opinion delivered by him in the case of Loan and Exchange Bank of S.C. against Shealy, countytreasurer of Lexington County, 62 S.C. 345,40 S.E., 674: "It was evidently the intention of the legislature that all those having a duty to perform with reference to school districts should be fully informed with reference to the fund apportioned to the school districts. Realizing the great danger of conferring upon the boards of trustees unlimited power to enter into contracts within the scope of their agency, the legislature enacted the provision, `that all contracts which boards of trustees may make in excess of the funds apportioned to their districts shall be void.' Section 53, Act of 1896. It likewise limited the power of the boards of trustees by providing that they should only be `capable of contracting and being contracted with to the extent of their school fund.' Section 31, Act of 1896." The respondent, as county treasurer, was bound to know these provisions of the law. He could not pay this claim on the 18th day of February, 1898, because of the want of school funds. He did not have the funds to pay this claim on the 30th June, 1898, which date ended the scholastic *Page 154 year. He did not have the funds on the 12th December, 1898, which was in a new school year, and presumably arising from the taxes which commenced to be paid 1st October, 1898. It will not embarrass the county treasurer to pay back this sum of $198. There is nothing in the law to forbid his correction of this error. All that will happen will be that School District No. 5, of Clarendon County, will have $198 to its credit on the books of the county treasurer, which sum, in the eyes of the law, should have been there on the 12th day of December, 1898. Under the decision of Morton, Bliss Co. against Hoge, as ComptrollerGeneral, supra, the relators have shown that the respondent is bound to the performance of some specified duty imposed by the law of a ministerial character and in the performance of which the relators have a legal interest, for it was the specific duty of the respondent to keep the funds belonging to School District No. 5 in his hands until paid out on claims, as required by law. The correction of an error in dollars on the books of the county treasurer is a ministerial duty. In the performance of this duty by the county treasurer, the relators have a legal interest, for by law they control the management of the finances of the school district.
It is suggested, however, that a majority of this board of trustees put it into the power of Tutwiler to practice this imposition upon the holder of the claims of Tutwiler. That cannot prevail here, because Tutwiler and A. Levi were bound by all the safeguards thrown by the law upon the issuance of any such order. This is no evasion of the law merchant. The specific character of the whole transaction showed that this attempted exercise of power by this board of trustees had to be grounded upon the school law of this State. When the agents of a State government seek to issue bonds, even innocent holders for value without notice are bound, if such bonds were issued without the agents of the government having legal power to do so. Bond DebtCases, 12 S.C. Such being our views, we are led to sustain all the exceptions which correspond to the principles of *Page 155 law herein announced, and overrule any others. But we wish it distinctly understood that we do not pass upon any questions as to A. Levi's right against School District No. 5, or these two appellants, Robert C. Plowden and John W. Clark, if any such questions can be raised.
For these reasons, I think the judgment of this Court should be, that the judgment of the Circuit Court be reversed, and that the action be remanded to the Circuit Court, with directions to issue a writ of mandamus as prayed for.