46 So. 766 | Ala. | 1908
Application for mandapius to compel Thomas H. Smith, as chancellor for the Thirteenth district, Southwestern chancery division of Alabama, to recuse himself because of alleged statutory disqualification to hear and determine the petition of Z. M. P. Inge as trustee, the effect and purpose of Avhich petition will later appear.
Because of the insolvency of the municipal corporation known as the “Mayor,' Aldermen, and Common Council of the City of Mobile,” the Legislature, by an act approved February 11, 1879 (Acts 1878-79, p. 381), vacated and annulled its charter, and created a commission with defined powers and duties looking to an adjustment of the large liabilities existing against the mentioned municipality. Among other duties imposed on the commission was that they should, after consultation with the bondholders of the municipality, propose and submit, through the Governor, to the next General As
Without attempting a resume of provisions ■ of the whole act, aside from the summary above made, we are unable to find any provision in the act or its amendment imposing on the trustee any duty to anticipate or prepare for the liquidation of the debts mentioned in the act, much less to provide, or to exert himself in any wise to that end, for the ultimate payment of the said indebtedness, and its interest, or to the refunding, by any method, of the bonds of which the trust acts' treat, otherwise than as ability for such payment may be afforded by the two agencies referred to above, viz., the sale or rental of certain properties of the insolvent and the special tax levied by the act. If any such duty obtains, it has escaped us. By the very terms of section 35 (page 358) of the act agents and officers created thereby are circumscribed in duty, power, and authority, and care is taken to provide that there be no enlargement thereof; and we may add that no power is conferred on the trustee to in any wise terminate the trust, except the possibility that the application of the trust funds to the indebtedness to which it should be devoted might attain in whole or in part, that end. In other words, his evident power and duty is by the terms of the acts limited to service looking to the application of the trust funds made by the acts the corpus of the trust estate. The petition of the trustee, mentioned before, to hear which it is alleged that the chancellor is disqualified, invokes the action of the court or chancellor with reference to funds, bonds, or values, not of the trust to the administration of which the trustee is attached or anent which he has no duties, but with reference to property of the debtor with the disposition of which by it the trustee nor the court can as of right
If it be conceded that the trustee is possessed of any duty warranting the presentation of such a petition, and if the petition in question is construed as merely invita-tory as far as the debtor city is concerned — as simply blazing a way, to follow which the city may or may not elect to do — then any ruling thereon by the court or chancellor will be purely moot; for the city may not take the course anticipated, and the writ should not generally issue to such purpose. 26 Cyc. 156, and notes. On the other hand, if the petition asks action with the view to the compulsory deposit of the funds or bonds of the city, not of the trust, with the court or its officers or agents, then the court is clearly without power to so decree against the will or wish of the city. Hence, in either event, the action sought by the petition cannot be granted. Confronted with such a situation, we must necessarily apply the principle, and that without deciding the competency vel non of the chancellor, that the writ of mandamus will not issue when its effect would be wholly vain.- — Ex parte Goldthwaite, 120 Ala. 481; 24 South. 389, 26 Cyc. 147, 149, 153, 156, and notes. The petition, if invoking the court’s action to a compulsory order against funds outside the trust in its jurisdiction for ad
The writ is, for the reasons stated, denied.