Sutton v. Figgatt

185 S.E.2d 97 (1971)

280 N.C. 89

Robert SUTTON and Sue Sutton v. J. B. FIGGATT, Individually and as Representative of the Class of Magistrates from Time to Time of Mecklenburg County, North Carolina.

No. 70.

Supreme Court of North Carolina.

December 15, 1971.

*99 W. Thomas Ray, Charlotte, for plaintiffs-appellants.

Atty. Gen. Robert Morgan and Staff Atty. Richard N. League, Raleigh, for defendant-appellee.

SHARP, Justice:

Although plaintiffs ask the court for a mandatory injunction directed to defendant Figgatt, and for a declaratory judgment designed for the enlightenment of the twenty-one magistrates of Mecklenburg County, they have alleged a cause of action for a writ of mandamus. However, in this State, where the court exercises both legal and equitable jurisdiction, in a suit against a public official or board there is no practical difference in the results to be obtained by the common-law remedy of mandamus and the equitable remedy of mandatory injunction. Safrit v. Costlow, 270 N.C. 680, 155 S.E.2d 252; St. George v. Hanson, 239 N.C. 259, 78 S.E.2d 885; Williamston v. Atlantic Coast Line R. R., 236 N.C. 271, 72 S.E.2d 609; Board of Managers of James Walker Memorial Hospital v. Wilmington, 235 N.C. 597, 70 S.E.2d 833; Clinton Dunn Telephone Co. v. Carolina Telephone & Telegraph Co., 159 N.C. 9, 74 S.E. 636.

The writ of mandamus is an order from a court of competent jurisdiction to a board, corporation, inferior court, officer or person commanding the performance of a specified official duty imposed by law. Nebel v. Nebel, 241 N.C. 491, 85 S.E.2d 876; Hamlet Hospital v. Joint Committee, 234 N.C. 673, 68 S.E.2d 862; Steele v. Locke Cotton Mills, 231 N.C. 636, 58 S.E.2d 620; Hickory v. Catawba County and Newton Graded School Dist. v. Catawba County, 206 N.C. 165, 173 S.E. 56. It is an extraordinary remedy which the court will grant only in case of necessity. Edgerton v. Kirby, 156 N.C. 347, 72 S.E. 365. The writ is employed as a remedy for inaction on the part of the particular official to whom it is directed. It is, therefore, a personal action based upon allegation and proof that the defendant has neglected or refused to perform a personal duty which the plaintiff has a clear legal right to have him perform. 52 Am.Jur.2d Mandamus §§ 8, 9 (1970); 55 C.J.S. Mandamus § 2 a (1948). In a case involving the exercise of discretion, mandamus lies to compel action by a public official but not to dictate his decision unless there has been a clear abuse of discretion. Hamlet Hospital v. Joint Committee, supra; Harris v. Board of Education, 216 N.C. 147, 4 S.E.2d 328; Edgerton v. Kirby, supra.

The courts of this State have no discretion to refuse the writ when it is sought to enforce a clear legal right to *100 which it is appropriate, but it is well settled that the writ will not issue to compel the performance of an act which a defendant shows a willingness to perform without coercion. White v. Board of Appeals, 45 Ill. 2d 378, 259 N.E.2d 51 (1970); Hutson v. Lovett, 305 S.W.2d 524 (Ky.1957); Lane v. Ross, 151 Tex. 268, 249 S.W.2d 591 (1952); State ex rel. Board of Educational Com'rs v. O'Brien, 170 Tenn. 435, 95 S.W.2d 921 (1936); State ex rel. Stoecker v. Lemay Ferry Sewer Dist., 332 Mo. 965, 61 S.W.2d 724 (1933); 52 Am.Jur.2d Mandamus § 89 (1970); 55 C.J.S. Mandamus § 10 b (1948). Furthermore, it is not the office of mandamus to redress a past wrong or to prevent a future legal injury. Steele v. Locke Cotton Mills, supra; Dry v. Board of Drainage Commissioners, 218 N.C. 356, 11 S.E.2d 143; Maryland Casualty Company v. Leland Comrs. of Saluda, 214 N.C. 235, 199 S.E. 7.

The following statement by the Supreme Court of Illinois in People ex rel. Bruce v. Dunne, 258 Ill. 441, 447, 101 N.E. 560, 562, is applicable here: "If it is the duty of the defendants to do the acts sought to be coerced by the writ, such acts would not be any more valid or legal if done under the command of the court. The office of the writ is to compel action by the unwilling.. . . The writ will not issue to compel the doing of an act which the person sought to be coerced admits on the record he is willing to do without coercion."

Applying the foregoing principle to the facts of this case, it is quite clear that plaintiffs are not entitled to the writ of mandamus. On 20 April 1971 Magistrate Figgatt waited from three to five hours, ready, able, and willing to accord plaintiffs their legal rights under G.S. § 15-19. In open court he had announced his readiness to examine plaintiffs under oath with reference to their complaints against Messrs. Arrington and Metcalf. Had plaintiffs desired to pursue their alleged purpose to obtain warrants for the arrest of these two deputies for assaulting them on 29 March 1971, the opportunity was available. A warrant would issue, however, only if it appeared to the magistrate from his examination of plaintiffs that the officers had committed a criminal offense. G.S. § 15-20.

Plaintiffs contend (1) that "[t]his is a classic case of justice delayed, justice denied"; and (2) that if the writ of mandamus is not issued plaintiffs will suffer "irreparable loss and injury" by the denial of "clear legal rights." However, plaintiffs' election to appeal Judge Blount's order rather than to apply to defendant, or make complaint to some other magistrate, impugns and defeats the contentions they have stated. In April they could have had for the asking the only relief to be obtained by appeal. It suffices to say that the court will not issue the extraordinary writ of mandamus merely to enable a party to prove a point or to excoriate a public official for a mistake he stands ready to correct.

As recited in Judge Blount's findings of fact, plaintiffs offered no evidence to sustain their allegation that defendant Figgatt's initial refusal to examine plaintiffs was the result of "an illegal policy, pattern and practice" adopted by all magistrates in Mecklenburg County. Judge Blount acted correctly in treating this action as one against defendant alone and in refusing to declare a right about which there was no real existing controversy. Angell v. Raleigh, 267 N.C. 387, 148 S.E.2d 233.

In the hearing below we find no error. The judgment of Judge Blount is in all respects

Affirmed.