Jan. 7, 1869. Separate opinion of
Moses, C. J.While I concur in the result of the opinion pronounced by the learned Associate, I do not desire to be understood as committed to all which it contains, as leading to the conclusion to which the Court has arrived.
If I regarded the statute conferring on the Board of Aldermen the power “ to examine the returns and the ballots, and investigate the case,” as imposing the authority “ to hear and determine,” I would not feel warranted in granting the mandamus merely because they had failed to declare the election.
The obligation to “hear and determine ” involves the right to .consider and dispose of by judgment. The determination consequent on the hearing is to be carried out by judgment, which implies decision.
In the King vs. Loxdale et al., 1 Burr., 447, Lord Mansfield said : “ It is a rule, in the construction of statutes, that all which relate to the same subject, notwithstanding some of them may be expired or are not referred to, must be taken to be one system, and construed consistently.”
The learned counsel for the respondents recognized the force of this rule when he remarked, “ that the question is to be decided by the law and custom of South Carolina.”
Are the powers, however, of the Board of Aldermen, under th$ Act of 1868, as general and extensive as those of the Managers of Elections under the Acts of 1808, 1815, 1839 and 1846, so that this rule becomes imperative as a guide? If, on t'he contrary, they are more restricted, then, following the reason on which it is founded, may we not conclude that the Legislature proposed and intended a different and more limited grant than they had theretofore extended to Boards of the like character?
The Acts of 1808 and 1815 authorize the Managers “ to hear and determine.” Those of 1839 and 1846, “ to hearand determine the validity of the election; and their decision shall be final.”
With a knowledge of these Acts, the Legislature, in 1868, providing an uniform system for the election of officers of incorporated towns, invested with authority the acting Board of Aldermen, *44where the election of a majority of the persons voted for is contested, or the Managers are charged with .illegal conduct, to examine the ballots and returns, investigate the case, declare the election; and their decision was to be binding on all parties.
Does this confer upon them such judicial power as puts them beyond the reach of the process of mandamus ?
This proposition is plainly and distinctly announced by the return, and it is due to the respondents that it should be considered-
The received idea at one time was, that the writ would only lie to command the performance of a ministerial duty, but later cases have gone further, and it is now the constant practice to grant the writ to command the performance of any public duty for which there is no specific remedy. — Tappan, 12, 176.
More especially does this apply in matters enjoined by statute; and thus, where the Ordinary (an Ecclesiastical Judge) refused a grant of administration or probate of a will, the King’s Bench, a temporal Court, ordered the writ. — Anonymous, 1 Strange, 552; King vs. Doctor Hay, 1 Blk. Rep., 648; Bacon Abr., Mandamus, D., 434.
And the ruling was followed in Sikes vs. Ransom, 6 Johns., 279; State vs. Watson, 2 Speers, 97.
To what extent the Court, by this prerogative writ, would attempt to interfere with an inferior jurisdiction, where a judicial power was to be exercised, it is not necessary now to decide.
In the case of the Commissioners of the Poor vs. Lynah, 2 McC., 170, the Court said they would interpose, if there had been an abuse of discretion ; and this was in regard to a body clothed with judicial authority in the matter in which they had acted.
Judge Brevard, in the case of Bruce, 1 Tr. Con. Rep., 180, referred to in the argument, said : “ But the authority of Managers is not purely'judicial. Their discretion is limited by legal restraints, and, being inferior Magistrates of a mixed character, even though they should confine themselves within the bounds of their jurisdiction, yet they must be subject to the visitorial jurisdiction of the Court of General Sessions, to regulate and correct them in the exercise of their discretionary power;” and he refers to 10 East, 403, and 7 East, 92.
The mere power to investigate and declare an election is not of such a judicial character as precludes supervision by the writ of mandamus.
The Legislature appears to have had in view all the Acts hereto*45fore passed in relation to Managers of Election, so far as their powers were concerned, and to limit the Board of Aldermen, in the contingencies provided for, to the mere investigation of the contested case and the declaration of the election. This permitted scrutiny, and all that was necessary for the proper execution of the power thus confided. What that declaration should be, depended on the facts elicited in the inquiry; but it is required by the Act, for, otherwise, a party interested could not be placed in the position, winch, the law concedes to him, to assert, through the Courts, his right to an office.
The declaration may, in the end, be of no value to him; but still, if the Act extends the privilege, it was not competent for the Board to deprive him of it by neglect or refusal to carry out its provisions.
It is made a substantive duty on the part of the Managers ; the words were intended to denote something; the language is plain, and has a significance and meaning which the Court is not at liberty to overlook or disregard.
It is said, however, that the writ will not be granted where it must be fruitless, vain, or useless, and that the Court has full discretion in the matter.
It is true that if the writ could have no result, as in The Queen vs. Trustees of Norwich Savings Bank, 3 A. and E., 729, or where the act to be performed would fail to carry out the purpose of a relator, because it could not be accomplished in time to render it available, the Court would stay its hand. It has not been made to appear that any such obstructions or difficulties prevail in the case before us.
Of all the powers which a Court is called on to exercise, it approaches none of them with more caution and distrust than those which are alleged to be within its mere discretion. Where the law affords fixed principles for guidance, there is less danger of a “ false judgment.”
Where nothing is to be followed but the suggestions of “ legal will,” there is a consciousness of a want of safety, because there is then no reliance but on the dictation of mere reason, which would induce a fluctuation and vascillation, inconsistent with public security, and which might entail on the community all the evils which a regulated system of law was intended to prevent.
Where discretion is to be exercised, it must be governed by some admitted and prefixed standard of right. It is true that, where the *46end sought is only a private one, or granting the writ would be attended with manifest hardship, there it will be withheld.— Van Ransaeller vs. Sheriff of Albany, 1 Cowen, 512.
How, in a matter of public concern affecting a large city, can we undertake to say that the relators are not entitled to the remedy which the law provides, to place them in a position in which they may assert their claim to an office ?
The wrong and hardship would be in precluding them from the opportunity of establishing, if they can, a right, from the possession of which they aver they are prevented by the non-performance by the Board of Aldermen of a duty which the law enjoined.