No. 597.

70 S.E.2d 833 (1952)

235 N.C. 597


Supreme Court of North Carolina.

May 21, 1952.

Attorney(s) appearing for the Case

Wm. B. Campbell, Wilmington for defendant-appellant.

Isaac C. Wright, Wilmington, for plaintiff-appellee.

DENNY, Justice.

Mandamus is a writ issuing from a court of competent jurisdiction commanding an inferior tribunal, board, corporation, or person to perform a purely ministerial duty imposed by law. The party seeking such writ must have a clear legal right to demand it, and the tribunal, board, corporation, or person must be under a present, clear, legal duty to perform the act sought to be enforced. Hamlet Hospital and Training School for Nurses v. Joint Committee, 234 N.C. 673, 68 S.E.2d 862; Poole v. Bd. of Examiners, 221 N.C. 199, 19 S.E.2d 635; Harris v. Board of Education, 216 N.C. 147, 4 S.E.2d 328; Mears v. Board of Education, 214 N.C. 89, 197 S.E. 752; John v. Allen, 207 N.C. 520, 177 S.E. 634; Rollins v. Rogers, 204 N.C. 308, 168 S.E. 206; 55 C.J.S., Mandamus, § 125, page 213.

A mandatory injunction, when issued to compel a board or public official to perform a duty imposed by law, is identical in its function and purpose with that of a writ of mandamus. And a writ of mandamus is final in its nature. As pointed out by Johnson, J., in Hamlet Hospital and Training School for Nurses v. Joint Committee, supra, an interim or temporary writ of mandamus is unknown to the law. Mandamus is not a preventive remedy to be used as a restraining order to preserve the status quo, but it is essentially a coercive writ; one that commands performance, not desistance before 34 Am.Jur. Mandamus, section 2, page 809. Such writ will not be issued to enforce an alleged right which is in question. Harris v. Board of Education, supra; Hayes v. Benton, 193 N.C. 379, 137 S.E. 169. Mandamus lies only to enforce a clear legal right and will be issued only where there is no other legal remedy. Harris v. Board of Education, supra; Cody v. Barrett, 200 N.C. 43, 156 S.E. 146; Umstead v. Board of Elections, 192 N.C. 139, 134 S.E. 409. "The function of the writ is to compel the performance of a ministerial duty—not to establish a legal right, but to enforce one which has been established." Wilkinson v. Board of Education, 199 N.C. 669, 155 S.E. 562, 564.

This action was instituted for the purpose of ascertaining the rights of the respective parties under the various legislative enactments referred to and made a part of the plaintiff's complaint. In the meantime, before the City of Wilmington's motion to strike certain portions of the complaint was heard, without an answer being filed by either of the defendants, or a demurrer interposed, the court, on motion of the plaintiff, issued a writ of mandamus to compel the City of Wilmington to make the very contributions the plaintiff seeks to ascertain, in this action, whether it has the legal right to compel the City of Wilmington to make. Furthermore, this writ may not be treated as a temporary injunction to preserve the status quo until the further order of the court as was done in the case of Hamlet Hospital and Training School for Nurses v. Joint Committee, supra. There, a writ denominated an "interim writ of mandamus" was applied for and obtained to prevent the removal of Hamlet Hospital and Training School for Nurses from the accredited list of such institutions until the further order of the court. We treated the writ, and properly so, as a temporary restraining order, but here affirmative action is ordered and directed before the pleadings have been filed, the issues joined and the clear legal right to a mandamus has been established. The writ was prematurely issued.

The question to be adjudicated in this action is of vital importance to the future maintenance and welfare of one of the State's finest eleemosynary institutions. The City of Wilmington and the County of New Hanover, prior to July 1, 1951, have not only contributed annually for fifty years to the maintenance of this institution, but they have also contributed substantial sums of money for its enlargment. A final decision in this action should not be delayed by legal sparring. It ought to be a simple matter to agree upon the facts and obtain a prompt ruling thereon. The outstanding services rendered by this institution to the citizens of the City of Wilmington and the County of New Hanover, for more than half a century, merit the prompt and effective co-operation to this end by all parties concerned.

The judgment below will be set aside and the cause remanded to the end that the rights of the parties may be determined after the issues have been joined, or the defendants have failed to answer or otherwise plead. In any event, a writ of mandamus should not be issued against the defendants, or either of them, until the cause is finally adjudicated on its merits.

Error and remanded.


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