Opinion
10759
December 6th, 1921.
Before TOWNSEND, J., Richland, July, 1921. Appeal dismissed.
Mandamus by G.F. Miller against R.A. Cooper, Governor of the State of South Carolina, ex officio member of the Board of Directors of the State Penitentiary, and others. Writ denied, and relator appeals. Appeal dismissed.
Relator claimed to have performed dental services for inmates of State penitentiary and brings this proceeding against the defendant officials to require them to present, audit, and approve his claim therefor. The defendants denied that the State had contracted to pay relator for such services and claimed that the services were to have been paid for by the inmates for whom services were rendered.
Order of lower Court denying writ is as follows:
This matter came on for hearing before me upon petition and return thereto and traverse herein filed. Upon consideration of the entire matter, and after hearing argument of counsel, I hold that the matter of contract between the parties herein is in controversy, and is not conclusive; it is not clear that the petitioner was employed by the superintendent of the penitentiary, and therefore the case does not present facts justifying a writ of mandamus. Therefore it is ordered that the petition be, and hereby is, dismissed, and the prayer refused.
Messrs. Thos. H. Peeples and G. Duncan Bellinger, for appellant, cite: Estoppel by conduct: 6 S.C. 46; 9 Wall. 274; 13 S.C. 370; 97 S.C. 116. Plain ministerial duty to appoint dentist under Act: 27 Cyc. 795; 63 S.C. 189. Mandamus will issue: 30 S.C. 579; 26 S.C. 192; 35 S.C. 213; 35 S.C. 233; 35 S.C. 245; 38 S.C. 326; 7 S.C. 376.
Mr. Samuel M. Wolfe, Atty. Gen'l., for respondent, cites: Act requiring discretion not compellable by mandamus: 82 S.C. 141; 18 S.C. 246; 1 S.C. 23; 15 S.C. 323.
December 6th, 1921. The opinion of the Court was delivered by
For the reasons assigned by his Honor the Circuit Judge, the appeal herein is dismissed.