Ex parte Thompson

| Ala. | Jan 15, 1875

BRICKELL, C. J.

The judge of the ninth judicial circuit, upon the address of four members of the court of county commissioners of the county of Macon, required the relator to give an additional bond as judge of probate of said county. The relator tendered an additional bond, which the judge refused to approve, because he deemed the sureties insufficient. A mandamus to compel him to approve is moved for by the relator.

Unless the court departs from the decision made at the present term in Hx parte George JE. Harris, the application must be refused. We have carefully reconsidered that decision, and have reexamined the authorities on which it rests, and many others, some in harmony, others conflicting with it. The questions decided in that case, so far as they affect this, are, that the approval of official bonds, under the statutes of this State, is the exercise of judicial, not of ministerial power; and that mandamus will not lie to revise the exercise of the power. We cannot attain any other conclusion.

It may not always be easy to ascertain the real character of a statutory power intrusted to a judicial or ministerial officer. When the power is clearly defined and enjoined, does not involve the exercise of discretion or judgment, and no alternative is left to the officer charged with its execution ; when he must act without inquiry, and without evidence, and the mode of action is expressly declared, the power is purely ministerial. When, however, the power involves the exercise of judgment and discretion ; when it is to be exercised only in an ascertained event and on the concurrence and existence of particular facts, and the officer charged with the execution of the power must determine whether the event has arisen, or the facts exist requiring its exercise, then the power is judicial, or in its nature judicial.

A reference to some of the cases in which mandamus has been awarded, and some in which it has been refused, will aid in determining the nature of the power of approving official bonds as prescribed in the statutes of this State, and whether the writ is a proper remedy to revise the action of the judge intrusted with the power, in granting or withholding approval. The governor of the State was required, when a railroad company complied with certain terms expressed.in an act of the legislature, to draw his warrant on the treasury in favor of the company for a certain sum. The terms were complied with, but the governor, supposing the act was modified or repealed by a subsequent statute, refused on application to draw the warrant. This court holding the first act was a legislative grant to or contract with the company, incapable of repeal or modification without its consent by any subsequent statute, and that the duty imposed on the governor was merely ministerial, which could as well have been devolved on a subordinate or inferior officer, awarded a mandamus compelling him to draw the warrant. Tenn. & Coosa R. R. Co. v. Moore, 36 Ala. 371" court="Ala." date_filed="1860-06-15" href="https://app.midpage.ai/document/tennessee--coosa-railroad-v-moore-6506763?utm_source=webapp" opinion_id="6506763">36 Ala. 371. It will-be observed, that in the case no question of fact was presented. The facts were uncontroverted, and there remained no matter involving judgment or discretion, and no alternative for the governor to adopt in the exercise of this judgment. The statute was imperative; he should do the mere manual, ministerial act of drawing a warrant for a specific amount. An act of Congress authorized the solicitor of the treasury to adjust on principles of equity claims preferred against the United States, and directed the postmaster general to credit the parties with the sum ascertained by the solicitor to be due them. A mandamus was awarded to compel the postmaster general to perform the mere clerical, ministerial duty of entering on the books of his department a credit of the sum ascertained by the solicitor. Kendall v. U. S. 12 Pet. 524" court="SCOTUS" date_filed="1838-03-12" href="https://app.midpage.ai/document/kendall-v-united-states-ex-rel-stokes-86062?utm_source=webapp" opinion_id="86062">12 Pet. 524.

In Life & Fire Ins. Co. v. Wilson (8 Pet. 291" court="SCOTUS" date_filed="1834-02-18" href="https://app.midpage.ai/document/life-and-fire-ins-company-of-new-york-v-wilsons-heirs-85880?utm_source=webapp" opinion_id="85880">8 Pet. 291) a mandamus was awarded to compel a judge to sign a judgment which had been rendered by his predecessor in office, his signature being necessary under the local law, the court saying, “ the act of signing the judgment is a ministerial and not a judicial act.” These are not extreme cases, and are selected only to show the character of the act, — the nature of the power it involves — the performance' of which has been enforced by mandamus. The exercise of judgment or discretion was excluded; there was a mere naked, well-defined ministerial duty to be performed.

In Ex parte Echols (39 Ala. 698" court="Ala." date_filed="1866-01-15" href="https://app.midpage.ai/document/ex-parte-echols-6507217?utm_source=webapp" opinion_id="6507217">39 Ala. 698), an application was made to this court to compel the speaker of the House of Representatives to send to the Senate a bill, averred to have passed the House, which he refused to send, because he did not deem it had received the number of votes necessary to its passage ; all consideration of the jurisdiction of the court was waived, and the writ refused, upon the specific ground that the speaker, in his refusal, was exercising power in its nature judicial, not ministerial. The court said: “ It seems to be held by all the authorities, that the writ of mandamus can only issue to some officer required -by law to perform some mere ministerial act, or to a judicial officer to require him to take action ; but not in a matter requiring judgment or discretion to direct or control him in the exercise of either.” The supreme court of the United States have uniformly announced this rule. The acts of Congress intrusted the superintendent of public printing with the distribution to the printers of the Senate and of the House of all matter ordered to be printed, requiring, when any document was ordered to be printed, that the printing should "be done by the printer of the house first ordering it. A mandamus was sought to compel the superintendent to deliver a particular document to the printer of the House, on the admitted fact that'the House first ordered its printing. The mandamus was refused. C. J. Taney, reviewing the former decisions of the court, said: “ The rule to be gathered from all of these cases is too well settled to need further discussion. It cannot issue in a case where discretion and judgment are to be exercised by the officer, and it can he granted only where the act required to he done is merely ministerial.” U. S. v. Seaman, 17 How. 225" court="SCOTUS" date_filed="1855-03-18" href="https://app.midpage.ai/document/united-states-ex-rel-tucker-v-seaman-86924?utm_source=webapp" opinion_id="86924">17 How. 225.

All the authorities, however conflicting they may be, profess to proceed on the rules announced in these cases. A judicial officer approving an official bond under the laws of this State exercises a function more important, delicate, and responsible than that involved in many of the authorities in which the power has been declared judicial. The interests of a community depend on the fidelity with which he discharges the duty. The probate judge has the care of the estates and interests of persons not sui juris, the security of which rests largely.on the sufficiency of the official bond, to which they may resort in the event of his misfeasance or malfeasance. The sufficiency of such bond can be known to the approving officer only from evidence. He musk examine witnesses, and determine from their testimony whether the obligors in the bond are sufficient as sureties. I can conceive of no case in which an officer is compelled to hear evidence and to exercise judgment on such evidence, that the power, the duty he exercises, is not, to say the least of it, in its nature judicial.

If, as we must conclude, the approval of an official bond involves judicial power, then no principle of law can be regarded as better settled than that its exercise cannot be revised on mandamus. This writ has in it no revisory capacity; it is wholly compulsory. The supreme court of the United States say: “We are not aware of any case when a mandamus has issued to an inferior tribunal commanding it to reverse or annul its decision, where the decision was in its nature a judicial act, and within the scope of its jurisdiction and discretion.” Ex parte Secombe, 19 How. 9" court="SCOTUS" date_filed="1857-01-12" href="https://app.midpage.ai/document/ex-parte-secombe-87059?utm_source=webapp" opinion_id="87059">19 How. 9 ; United States v. Guthrie, 17 How. 304; Ex parte William Many, 14 How. 24" court="SCOTUS" date_filed="1853-03-18" href="https://app.midpage.ai/document/ex-parte-william-many-86766?utm_source=webapp" opinion_id="86766">14 How. 24; United States v. Commissioner, 5 Wall. 523.

It is evident that the statutes of this State are framed with the purpose of a rigid execution of official bonds from public officers having ministerial duties to perform, affecting the public revenues or the pecuniary interests of the citizen, sufficient for indemnity against official misfeasance or malfeasance. No public officer is intrusted with such large and unchecked power over these as the judge of probate. The danger to be guarded against is not his oppression, in the strict enforcement of the statutory powers conferred on the grand jury, or the court of county commissioners, intended to compel him to give and keep good and sufficient official bonds, but that there will be a want of promptness and indifference in the exercise of these powers. He has more ample remedies to redress any injury he may sustain from an abuse of these powers than the public has to enforce their exercise.

We are not unmindful of the argument, pressed with so much force by the counsel for the relator, that a public officer may be greatly wronged by the mere capricious or arbitrary refusal of the judge to approve his official bond, if such refusal is not revisable. In every power is wrapped up a capability of abuse. The main security against its abuse rests often only in •the power of public opinion — the official obligation and responsibility of the officer in whom it resides. There are many powers, the exercise of which may be productive of greater private injury than can follow a refusal to approve an official bond, depending only on judicial discretion, and not the subject of revision.. A new trial may be refused when life or liberty is in jeopardy; the refusal may be erroneous, in gross violation of law, and there is no jurisdiction to revise. A continuance may be wrongfully, capriciously, it may be corruptly granted, until by the lapse of time testimony is lost, and tbe wrong is allowed to prevail when the right could have been established; and yet there is no power of revision. ■ If the case should ever occur in which it is made to appear that the officer charged with the approval of an official bond has been so insensible to his official responsibilities as to withhold approval, from mere whim or caprice, or arbitrarily, we will not say a remedy by mandamus may not exist, — that then the refusal would not be in legal effect a mere refusal to exercise his power. Commissioners of Poor v. Lynch, 2 McC. 17 0 ; Arberry v. Beavers, 6 Tex., 457" court="Tex." date_filed="1851-07-01" href="https://app.midpage.ai/document/arberry-v-beavers-4887422?utm_source=webapp" opinion_id="4887422">6 Texas, 457. When, however, it is only error which is imputed to the officer, a mandamus cannot be awarded to correct it.

It is due to the respondent to say, that assuming as true the facts stated in his return, in justification of the refusal to approve the additional bond tendered by the relator, he would have erred if he had not refused.

The mandamus must be denied.