65 Ala. 88 | Ala. | 1880
— The auditor of the State of Alabama is a public officer, who receives a salaried compensation for his services to the State. He is denominated in the constitution as an executive officer, but many of his duties are ministerial, and others are quasi judicial. ' In many cases, it is difficult to declare whether certain of his official acts
Among the other duties imposed by statute, is that of “ keeping a book, in which he shall make an entry of the amount of taxes received from each county, and from whom received. — lb. § 83. The custody of this book, which is alleged, in the complaint in this suit, to be known as the “ Tax-Ledger,” has been held by this court to involve a ministerial duty; and it has been decided that mandamus will lie by a tax-collector, or his authorized attorney, to compel its inspection, where a proper interest is shown in its contents by the petitioner. — Brewer v. Watson, 61 Ala. 310. What limitation there may be upon this right, and under what circumstances it may, if ever, be regulated by official discretion, is a question that does not arise in this case, nor was it considered in the case swpra.
So far as concerns ministerial duties, Wharton, in his Commentaries on Agency, declares the rule to be as follows, and, we think, correctly so: “An individual, who has suffered harm from the negligence of a ministerial officer, within the range of the latter’s official duty, may recover compensatory damages from the officer. Nor, in such case, is it necessary to prove malice.” — § 547; Kendall v. Stokes, 3 How. (U. S.) 87.
And it is clear from the authorities, that where such officer acts in good faith, he is not liable to exemplary damages, but only for actual loss. — Plummer v. Harbut, 5 Clarke (Iowa), 308. “I consider the point beyond all dispute,” says Spencer, C. J., in Butler v. Kent, 19 John. (N. Y.) p. 223, “ that for a misbehavior of an officer, in his office, either from misfeasance or non-feasance, no one can maintain an action against him, unless he can show a special and particular damage to himself. Without such special and particular damage, he has no title to call the officer to account.”
And in the case of a State executive officer’s undertaking the performance of incidental duties, which involve the exercise of judgment or discretion, and are imposed by law, it may be well questioned whether he would be answerable in damages for the consequences of his acts, unless they are perpetrated maliciously, and with intent to injure. — Burton v. Fulton, 49 Penn. St. Rep. 151.
The complaint, in this case, alleges, that the injury complained of was done “ maliciously, and with intent to injure” the plaintiff; and there can clearly be no recovery of exemplary or vindictive damages, without proof of this particular averment, even though the duty in question be a ministerial one. And we may add, that if any other doctrine should obtain, than that here declared, and rules of law were based
These are the leading principles which apply to the questions raised, and which must ultimately decide the rights of the parties in this cause. It is needless to consider all of the exceptions that appear in the record. The first charge asked by appellant was properly refused, because nominal or compensatory damages might have been recoverable, without any malice or intent to injure on defendant’s part. The second charge requested was not correct. It was not necessary for defendant to have known that the plaintiff was the authorized attorney of the tax-collector. It was sufficient if he had reasonable ground to be advised of the alleged agency. The third and the thirteenth charges were abstract, and propevly refused. There was no evidence disclosing the fact that the inspection of the public records by plaintiff would have injuriously affected the public interests. The ninth and tenth charges seek the improper application of a principle, to which there would have been no objection, if the duty, of which a breach is claimed, had been discretionary, and not ministerial. The court did not err in refusing them. The eleventh charge was properly refused, because it precluded the jury from allowing “profits,” or mere remuneration, as part of the actual damages. The court erred in refusing to give the twelfth charge requested. The evidence tended to show, that there was a mere suspension of the duties and rights of the plaintiff, concerning which this action originated, and not an uninterrupted interference with the one, or total abrogation of the other. This fact was relevant in determining the extent of plaintiff’s alleged injury, and the measure of his damages. It tended to prove such damages to be merely nominal, and in the absence of malice, coupled with an intent to injure plaintiff, the jury were authorized so. to find.
The evidence relating to Lott’s alleged claim against the State was not relevant, and the several objections to its introduction should not have been overruled. It was probably introduced in connection with the fact that plaintiff was to receive a fee, graduated by a certain per-centage on the amount he procured to be allowed by the auditor. This compensation was based upon the contingency of its future allowance by this official. The connection between the principal and evidentiary facts here is too remote and conjectural. There must be a plain and manifest connection between the issue in controversy and the collateral facts introduced to sustain or rebut it. The evidence must have a proximate tendency to establish the proof or disproof of this principal
Before the plaintiff, under bis agreement, could obtain compensation for the services proposed to be rendered to Lott, there must have been a valid claim against the State, and its allowance by the auditor must have been procured by bim. It was denied that any part of tbe claim was due, and it was not permissible to enter upon tbe trial of this collateral issue, as it would tend too mucb to divert tbe mind of tbe jury from the principal issue in tbis action.
The- testimony of Lott, that “plaintiff told me that defendant refused to let bim examine the books in bis office,” was mere hearsay, and should have been excluded on defendant’s objection.
The first ground of demurrer in tbis case was correctly overruled by the circuit judge. It failed to comply with the statute, which requires a distinct specification of all causes of demurrer that may be interposed. — Robbins v. Mendenhall, 35 Ala. 722; Code (1876), § 3005.
Eor these erroneous rulings of tbe Circuit Court, tbe judgment is hereby reversed, and the cause remanded.