ON PETITION FOR REHEARING The petition for rehearing reiterates the position taken in the main hearing, to wit, that under the provisions of Section 5970 of the Code, the State Highway Department was bound to pay the bonds of Chesterfield County as they fell due, and the county had made default in such payment. There can be no question that the legislation embodied in that section, and allied Acts, was predicated on the assumption that the reimbursement agreements therein provided for would be faithfully performed by the county entering into it, and the money contracted to be advanced to the commission would be so advanced.
There arise in this case various and complex questions which ought not to be determined in this summary process of mandamus.
The petition for rehearing reiterates the assertion of the complaint that the plaintiff has no adequate remedy at law, and, hence, is entitled to apply to this Court in its original *Page 329 jurisdiction for the relief it seeks. We do not concur in this view.
The statutes of the State (Code 1932, § 5937 et seq.), authorize the county and the highway commission to enter into what are called reimbursement agreements, of the nature of that made between Chesterfield County and the highway commission. In other words, the parties are authorized to enter into a contract. It is true that the statutes which authorize the making of the contract do not in express language confer upon either contracting party the power to sue the other for breach of contract. But that right is one of necessary implication; it is a common-law right.
Section 5874, Code 1932, authorizes the highway commission to purchases gasoline and fuel. Suppose contracts for such purchases are made by the commission and it refuses or neglects to pay for the articles purchased. Will it be contended that it cannot be sued to enforce the contract of purchase except by consent of the State? We hold that the authority given to make the contract carries with it, by necessary implication, the authority to enforce the contract by an action at law. It was held by this Court in the case of Simonsv. City Council of Charleston, 187 S.E., 545, filed September 5, 1936, that an implication of like nature is lawful.
"Where a statute or the Constitution creates a right, but is silent as to the remedy, the party entitled to the right may resort to any common-law action which will afford him adequate redress." State v. Taylor, 224 Mo., 393,123 S.W., 892, 895. Quoted with approval in Chick Springs WaterCo. v. State Highway Department, 159 S.C. 481,157 S.E., 842, 843.
But the petitioner contends that since the State Highway Department is an agency of the State, it may not be sued without the consent of the State.
In the case of Chick Springs Water Co. v. Highway Department, just above cited, this Court laid down the principle that: "No act of General Assembly is needed for suit against *Page 330 state to recover just compensation for private property taken for public purpose (Const., Art. 1, § 17)."
In other words the Court holds that this constitutional provision is self-acting, and does not need for enforcement the aid of legislation to give the party injured the right to sue the agency of the State involved. This doctrine is repeated and affirmed in the subsequent case of Chick SpringsWater Co. v. State Highway Department, found in 178 S.C. 415,183 S.E., 27.
If, then, the State has taken the private property of Chesterfield County, to wit, its bonds, without making just compensation therefor, the county may maintain its action thereabout.
Let it be borne in mind that this Court expresses no opinion upon this issue; that should be decided in an action at law.
This Court is still of the opinion that it has not been shown any ministerial duty devolving upon the highway department which subjects that department to the mandatory power of the Court, in the present case.
"A ministerial duty, the performance of which may, in proper cases, be required of a public officer by judicial proceedings, is one in respect to which nothing is left to discretion;it is a simple, definite duty arising under circumstancesadmitted or proved to exist and imposed by law" (Italics added). Black's Law Dictionary, p. 1190.
No simple, definite duty arising under any admitted or proven circumstances is shown to exist in this proceeding, and "imposed by law," which would justify this Court to order the State Highway Department to deliver the bonds, for which it has paid, to Chesterfield County for cancellation.
The petition for rehearing is denied. *Page 331