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The opinion of the Court was delivered by

Willard, A. J.

This is an appeal to the late Court of Appeals from a judgment rendered by Judge Glover, allowing a writ of peremptory mandamus, transferred to this Court by Act of the Legislature.

The respondent, I. W. Hayne, filed his suggestion before Judge Glover, alleging that there was to his credit in the Treasury the sum of $550, due as salary as Attorney General for the last six' months of the year 1864, and that the appellant, then State Treasurer, had refused to pay the same, and praying a writ of mandamus. A rule was issued, to which the appellant made return, among other things, as follows: “That all the funds nowin the Treasury came thereto by General Orders of General Canby, No. 139; that, by Paragraph I of said order, it is provided, ‘ to provide for the support of the Provisional Government of South Carolina for the year commencing on the 1st day of October, 1867, and ending on the 30th day of September, 1868 that, in the appropriation order -of *23same No. and date, by Paragraph XIV, it is provided that ‘the Treasurer of the State of South Carolina is hereby authorized to pay the appropriations herein made, and the salaries of public officers, payable, by law, out of funds applicable thereto, which have fallen due since the 1st day of October, 1867, and which may hereafter fall due;’ and, by Paragraph XVI, it is expressly provided, ‘that the unexpended balante of appropriations made within the last two years, and undrawn, may be paid by the Treasurer, according to the laws of South Carolina.’ ”

The return contains other matters not important to be considered under the view taken \>f this case.

The return was not traversed, nor does it appear, from the record, that evidence was taken in the case. The case, therefore, stands before us as upon a demurrer to the return, and our only duty is to examine it, in point of law, as to whether it affords sufficient ground for the peremptory mandamus.

By the return it appears that all the funds in the Treasury at the date of issuing the rule to show cause, April 22d, 1868, -were derived under a tax levy made by order of Major General Canby, then exercising military authority over the State, and were, by the same authority, appropriated to certain defined objects, not embracing the claim of the respondent. Authority was given to apply the unexpended balance of former appropriations, made within the two years previous thereto, “ according to the laws of the State of South Carolina.” It would appear from the return that no such unex-pended balance remained in the Treasury April 22d, 1868, all the funds held at that time having been derived under the military tax levy.

The determination of the question before us- must have exclusive relation to the state of facts existing at the time the proceeding was taken. It will not be necessary to notice the change in the situation of the parties, the contents of the Treasury, and the state of the funds in the same, which have occurred, as the propriety of the judgment appealed from can only be determined by the state of facts on which it was based.

The writ of mandamus can only issue to compel the performance of some act obligatory by law on the person or officer to whom it goes. He must have the ability to comply, as well as be under a clear duty in respect thereof. It is not necessary to make more than a general reference to the duty of the Treasurer in regard to the payment of the creditors of the Treasury, as these duties are well *24understood. He cau only pay out of funds in the Treasury, appropriated by law, and to the objects of such appropriations. He is under no general obligation to pay the creditors of the State. It is not sufficient, even, that there should be a legal appropriation; he must have funds applicable thereto, or, in other words, not otherwise appropriated.

The respondent failed to make out such a s’tate of facts. As the onus ¡wobandi vests with the respondent, the application for the writ of peremptory mandamus ought to have been denied.

It is ordered and adjudged, that the order of the Judge, and the writ of peremptory mandamus thereby allowed, be, in all things, reversed and vacated.

Hoge, A. J., concurred.

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