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
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
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
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.