Ex parte Harris, 52 Ala. 87

BRICKELL, C. J.

To warrant the issue of a mandamus, the relator must show that he has a clear legal right to the performance of the duty or the exercise of the power sought to be compelled. The existence of a substantial doubt as to the right or power of the officer who is to be coerced to perform the particular duty, or to do the particular act, forbids compulsion by mandamtis. High. Ext. Rem. § 32. Nor will a mandamus be awarded on an inchoate legal title. Thomason v. The Justices, 3 Humph. 233. At an early day in this State, it was determined that mandamus is not a proper remedy to try the right to a public office of which there is a de facto incumbent. The proper and adequate remedy is by quo warranto, or an information in the -nature of a quo warranto. Mead v. Dane, Minor, 46. This decision is supported by the great weight of authority. High. Ext. Rem. § 49 et sejq. The reason of the rule is apparent. A mandamus lies only in the absence of any other adequate and specific remedy for the grievance of which complaint is made. The existence of such remedy is a complete answer to the application. -2 Brick. Dig. 240, § 4. A quo warranto, or an information in its' nature, is the appropriate and the only adequate remedy, for the ouster of the de facto officer and the induction or restoration of the de jure officer. High. Ext. Rem. §§ 49-77 ; Dillon on Munic. Cor. §§ 211, 680, 714. Another reason is, that the writ cannot be addressed to the incumbent of the office. He has not power to admit to the office. Not having power to do that which is sought by the writ, he cannot be heard on the application for its issue. On the application for the writ, as he is not, and cannot be a party, his right to the office cannot be adjudicated. A quo warranto, or an information in its nature, would be directed to him, and would command him to exhibit his authority or warrant for holding the office. The judgment rendered would be against him, — a judgment of ouster, and a judgment inducting another into the office. An officer in office, under a commission issued by the governor, who is clothed with the power of commissioning all public officers, is at least an officer de facto. , His title and his acts as an officer are valid, and cannot be indirectly or collaterally impeached. If his authority is disputed, it must be in a direct proceeding to which he is a party, and which will finally adjudicate the right to the office. 2 Brick. Dig. 289, §§ 18, 19.

The approval of official bonds is, by the law of this State, intrusted to judicial officers, except as to particular state officers, whose bonds are to be approved by the governor. It does not necessarily follow that the power is judicial, and not ministerial, because it is conferred on judicial officers only. It was said in Marbury v. Madison, by C. J. Marshall (1 Cranch, 170), and has often been announced in this court, that “It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done, that the propriety or impropriety of issuing a mandamus is to be determined.” Tenn. Coosa R. R. Co. v. Moore, 36 Ala. 371; State v. Ely, 43 Ala. 568; Nichols v. Comptroller, 4 Stew. & Port. 154; Ex parte Candee, 48 Ala. 386. When power is conferred only on judicial officers, and it is difficult to determine on which side of the often shadowy line, separating judicial from ministerial power, it lies, it is rather indicative of a legislative intent that the general assembly regarded and intended the particular power as judicial. Without, however, laying any stress on the fact that the power of approving official bonds is intrusted only to judicial officers, we cannot doubt, that under 'our statutes it is in its nature . strictly judicial. The officer approving must prescribe the penalty of the bond. Pamph. Acts 1868, p. 8, § 5 (continued in force, Pamph. Acts 1872-73, p. 29, § 55). The bond of a sheriff or clerk of the circuit court, or of a judge of probate, must be in a penalty sufficient to furnish adequate security for the performance of his duties. The extent of these, and the magnitude of the pecuniary interests dependent on them, are to be considered in prescribing the penalty. A penalty graduated to these, in one county, and just and reasonable there, would be unjust and oppressive in another county, where the duties were less, and the pecuniary interests dependent on their performance less in value; In view of this, prescribing the penalty of an official bond involves judgment and discretion, to be exercised for the protection and security of the public and the individual citizen. The form of an official bond, its condition and obligation, are prescribed by law. Whether a bond offered conforms in this respect to the requisition of the law, the officer must determine before approving. He is forbidden to approve, if tbe bond does not conform to the statutory requisition. R. C. § 159. Can it be said, that in determining the sufficiency of a bond in this respect, ministerial and not judicial power is exercised ? Some of the most difficult questions which have been the subject of investigation and decision in this court were whether bonds, sometimes official, sometimes taken in the course of judicial proceedings, conformed to the statutes authorizing them, and were to be esteemed statutory bonds, or valid only as common law obligations. He must also inquire into and pass on the solvency of the obligors. This requires the hearing and weighing of evidence. If he should adjudge them insufficient, the exercise of his judgment will not be controlled by mandamus. State v. Bowen, 6 Ala. 511. If in the exercise of the power of approval, however erroneous his action, in the absence of statutory provisions subjecting him to liability, he is exempt on the common law principle, which protects a judge from liability to suit or indictment for judicial acts or omissions. Lester v. Governor, 12 Ala. 624; Hamilton v. Williams, 26 Ala. 527. We therefore must pronounce that the approval of an official bond is the exercise of power in its nature judicial, not ministerial. A different conclusion was attained, in State v. Ely, 43 Ala. 568; and in Ex parte Candee, 48 Ala. 386, on reasoning not satisfactory to us. We concur, as has already been said, in the proposition stated in the case last cited, that it does not follow a duty or power is judicial because it is to be performed by a judge. It is the nature of the power itself — what it involves — that determines its character. When the power involves judgment and discretion in its exercise, it is judicial, not ministerial. It is said in this case, that “ a judge of the circuit court may issue an attachment, and in doing so he is required to take a bond, with sufficient sureties; in other words, he must approve of the bond and judge of the sufficiency of the sureties. In doing this, he does not perform a judicial duty, for the same thing may be done by the clerk of his court.” If the power is to be deemed ministerial, because it may be exercised by a ministerial officer, as is here indicated, it would seem a departure from the principle announced in a previous part of the opinion, that it is the nature of the power, and not the officer exercising it, that is material in fixing its character. Apart from this, it has been decided by this court that the issue of an attachment by the clerk of a court, a ministerial officer, was the exercise of power in its nature judicial. Matthews v. Sands, 29 Ala. 138. We are reluctant to depart from former decisions. Such departures produce uncertainty in the administration of justice, disturb confidence in judicial decisions, provoke litigation, and excite a sense of insecurity in the transaction of business. If, however, we cannot doubt that the law has been misapprehended, and are impressed with the conviction that serious public injury will result from an adherence to former decisions, we feel bound to return to the law as we believe it should have been declared. We have given our reasons fully for the conclusion that the power under consideration is judicial. If the judicial officers charged with its exercise are in its performance to be converted into mere ministerial officers, subjected to the liability of such officers, vexed with private suits for acts or omissions in its exercise, their independence is endangered, and the wise public policy which has exempted them from suit is violated. We feel constrained to overrule on this point the cases to which we have referred.

The statute requires the official bond of a sheriff to be filed in the office of the judge of probate. R. C. § 814. It is further declared that official bonds required to be filed in the office of the judge of probate must be filed therein within fifteen days after the election or appointment of the officers required to execute them. R. C. § 162. The failure of an officer to file his bond within the time prescribed vacates his office; and it is the duty of the officer in whose office such bond is to be filed, “ at once to certify such failure to the appointing power, and the vacancy must be filled as in other cases.” R. C. § 164. Vacancies in the office of sheriff are filled by the appointment of the governor. Const. Art. V. § 21. The circuit judge, deeming the relator had vacated his office by failing to file his official bond within fifteen days after his election, refused his approval of the bond tendered by the relator. If we should award a mandamus to compel an approval, we would on this application revise his decision on this grave question. This is not the office of a mandamus. A mandamus is a compulsory, not a revisory writ. It lies to compel, not to revise or correct action, however erroneous it may have been. Inman v. Commis's Court, 21 Ala. 772; High. Ext. Rem. §§ 34, 46. The refusal to approve the bond was action, as essentially as approval would have been. The judge was bound to refuse, if the bond was tendered by one who had not a right to the office; for while hg does not by approving or disapproving determine or affect the title to the office, and is not required to take evidence in reference to the title, it is only he who has a clear legal right to the office who can demand the approval of a bond. If the officer should erroneously refuse to approve the bond of him who had the title to the office, or should approve the bond of one without title, the refusal or approval would not affect or in anywise impair the true title. Can it be said the relator has a clear legal right ‘to an approval of an official bond, in the face of a statute declaring lie has vacated his office by a failure previously to file his official bond ? The statute certainly casts a cloud on his title, which the approval of his official bond would not remove. We are aware of what was said as to the construction of this statute in Sprowl Lawrence, 33 Ala. 674; State v. Ely, supra, and Ex parte Candee, supra. When the question shall directly arise, we will not feel bound to follow these decisions, if they are not in this respect dicta. All we say now is, that on this application we will not reverse- the judgment of the circuit judge refusing the approval of the relator’s bond, because in refusing he was in the exercise of judicial power, and because we cannot declare the relator shows a clear legal right to the approval of an official bond.

Again, it appears the office is now filled by a de facto incumbent whose official bond has been approved. He is in office by virtue of a commission from the governor. That commission is conclusive evidence of the title to the office, until it is impeached on quo warranto. In that proceeding it is only primé facie evidence, liable, like othex primé facie evidence, to be countervailed. Hill v. State, 1 Ala. 559; Brightly’s Election Cases, 319, 313. The office is filled by a de facto incumbent, having the legal muniment of title, which is conclusive until impeached in a direct proceeding. It would be-vain and useless to approve the official bond of another. . Such approval could not entitle him to the office. It would not authorize him to oust the present incumbent, and enter on the duties of the office. He is not entitled to the approval unless he has a claim to the office. If he has such claim, there is a legal remedy for its enforcement, and when enforced by that remedy, the approval of his official bond will follow. In Hill v. State, supra, it is said, the executive is the department of the government through which its officers are made known to each other, and to the people, in the absence of a judicial investigation. But the giving of a commission to one who has no right to the office will not destroy the title of him who has the legal claim ; its only effect is to oust him of his franchise in the office, until his title to it shall be judicially determined. The commission of the governor compels every court in the State to take judicial notice of the fact that the office of sheriff of the county of Hale is filled, and who is its incumbent, when his term of office commenced, and when it will expire. Ragland v. Winn, 37 Ala. 32; Saltonstall v. Riley, 28 Ala. 164. Charged with this notice, the judge of the circuit court properly withheld approval of an official bond tendered by another.

There is no point of view in which we can regard the relator as entitled to a mandamus, and it is refused at his costs.

Case Details

Case Name: Ex parte Harris

Court Name: Supreme Court of Alabama

Date Published: Jan 15, 1875

Citation: 52 Ala. 87

Court Abbreviation: Ala.