Grider v. Tally
77 Ala. 422
Ala.
1884
Check Treatment
CLOPTON, J. —

-It is an unquestioned rule, founded on the *424public benefit, the necessity of maintaining the independence of the judiciary, and its untrammelled action in the administration of justice, that a judge can not be held to answer in a civil suit for doing, or omittiiig or refusing to do, an official act in the exercise of judicial power. His responsibility for the manner in which he discharges the high trusts committed to him is to the sovereignty from whom he derives his authority. It is, also, an undisputed rule, that an officer who is charged with the performance of ministerial duties, is amenable to the law for his conduct, and is liable to any party specially injured by his acts of misfeasance or nonfeasance. When the law assigns to a judicial officer the performance of ministerial acts, he is as responsible for the manner in which he performs them, or for neglecting or refusing to perform them, as if no judicial functions were intrusted to him. The boundary of his judicial character is the line that marks and defines his exemption from civil liability.

Our law, organic and statutory, confers on the probate judge large judicial powers, and there is also assigned to him the performance of many acts merely ministerial; -he is both a judicial and a ministerial officer! In Thompson v. Holt, 52 Ala. 491, it is observed: “ A bond was, by legislation, demanded from him, as a guaranty for diligence and fidelity in the performance of his ministerial duties; as it is exacted from other mere ministerial officers. It is not a guaranty for his integrity and fidelity as a judge. For this, no other security is demanded from him, than that demanded from all other judicial officers — his official oath, and the sense of responsibility which the power and dignity of the office inspire. The official bond stands as an indemnity against his errors, or his willful misconduct, as a ministerial officer only. . . . For that which he may do or omit as a judge, he is exempt from civil suit or indictment. The policy of the State, founded on a due regard for the interests of the community, expressed in legislation which began in the days of our territorial existence, and which has been enlarged as public necessity demanded, has .required of a probate judge an official bond, with sufficient sureties, conditioned in legal effect for the faithful performance of his ministerial duties, as a condition precedent to his induction into the office.”

The official bond being a guaranty and conditioned for -the faithful discharge of duties ministerial in their character, the inquiry addressed to our consideration is, whether the probate judge, in the matter of refusing to issue a license to the plaintiff, acted in a judicial or a ministerial capacity.

Judicial power is authority, vested in some court, officer or person, to hear and determine, when the rights of persons or property, or the propriety of doing an act, are the subject-*425matter of adjudication. Official action, the result of judgment or discretion, is a judicial act. The duty is ministerial, when the law, exacting its discharge, prescribes and defines the time, mode and occasion of its performance, with such certainty that nothing remains for judgment or discretion. Official action, the result of performing a certain and specific duty arising from fixed and designated facts, is a ministerial act. — Flournoy v. City of Jefferson, 17 Ind. 169; Tenn. da Coosa R. R. Co. v. Moore, 37 Ala. 371; Morton v. Comp. Gen., 4 S. C. 430; Commissioner v. Smith, 5 Tex. 471; Life d Fire Ins. Co. v.

Wilson, 8 Pet. 291. The inquiry should be directed to the question, does discretionary power attach to the office — the authority to decide, whether the license should or should not be granted ?

Section 1544 of the Code provides: “ No license must be granted to sell vinous or spirituous liquor, unless the applicant produce to the judge of probate of his county, or to the person authorized by law to grant such license, the recommendation of ten respectable freeholders and ^householders thereof, residing within four miles of such applicant, stating that they are acquainted with him, that he is possessed of good moral character, and is in all respects a proper person to be licensed.” The succeeding section prescribes the oath, which the applicant must take and subscribe before license is granted ; which oath may be administered by any officer authorized to administer oaths; and section 491 makes it the duty of the probate judge to issue the license upon payment of the amount required by law to be paid. Blank licenses are furnished by the auditor, to be filled and signed by the probate judge. No power is conferred on the probate judge to pass on the moral character of the applicant, or whether he is a proper person to be licensed, or on the propriety of issuing a license. He adjudges nothing —decides no question. On the production of the proper recommendation, taking and subscribing the prescribed oath, and paying the requisite amount, it is the clear and specific duty of the probate judge to issue the license.

If it be said, that the probate judge has to ascertain that the recommendation is by the freeholders and householders of the county, residing within five miles of the applicant, a similar necessity exists in every case of a ministerial duty. A sheriff must determine whether process, coming into his hands, is issued from a court of competent jurisdiction, and is regular on its face; and a treasurer of public moneys must ascertain whether the warrant is drawn by such officer, and in such manned that its payment is a duty ; but the execution of the process, and the payment of the warrant, are ministerial acts. A judge must determine whether a judgment is entered accord*426iug to the verdict of the jury, or the consideration of the court, and whether a bill of exceptions correctly recites the proceedings ; but the act of signing the judgment and bill of exceptions is ministerial. That a, necessity may exist for the ascertainment, from personal knowledge, or by information derived from other sources, of the state of facts on which the performance of the act becomes a clear and specific duty, does not operate to convert it into an act judicial in its nature. Such is not the judgment, or discretion, which is an essential element of judicial action.— Crane v. Camp, 12 Conn. 464. If the probate judge acts judicially in the matter of issuing a license, his decision is final and conclusive, and a license issued to a relative, within the degrees that disqualify a judge, is void.— Halso v. Seawright, 65 Ala. 431.

An appropriate and general test is laid down in Rains v. Simpson, 50 Tex. 495, as follows: “ Perhaps as safe criterion as any other, to ascertain whether a private suit will or will not lie, is to adopt the rule \yhich governs in cases in which a mandamus would or would not be granted.” On the refusal of the probate judge to issue the license, when first applied for, the plaintiff made application to the Circuit Court for a mandamus, commanding him to issue it. A peremptory mandamus was granted by the Circuit Court, and on appeal to this court, the judgment was affirmed. — Tally v. Grider, 66 Ala. 119. The character of the specific act asked to have performed was necessarily involved in the issue, and determined. This is manifest, when, it is observed that a mandamus, issued to an officer in a matter in respect to which he has discretionary powers, requires him only to take action, without directing the manner in which his discretion shall be exercised; but, when the act is merely ministerial, and its performance mandatory, the officer having no discretion, the mandamus requires and commands the doing of the specific act. If the duty of the probate judge is judicial — if he posesses discretionary power to issue or not to issue a license — a mandamus would not, and could not have been granted. The probate judge having already taken action and refused, a mandamus would have had no office to perform. Awarding a peremptory mandamus is a judicial ascertainment that the probate judge has no discretionary powers.

It may be proper to observe, that our consideration has been directed to the nature of the power and duty of the probate judge under the general laws providing for and regulating the issue of license to sell vinous or spirituous liquor. While we judicially know the act, commonly called the “Local Option Law,” passed in 1875, and that it is applicable to Jackson county, on demurrer to the bill of complaint, which does not *427aver, nor make any allusion to any proceedings under the act, we can not take judicial notice that an election has been ordered and held as provided, or of its result. An expression of .opinion, on the assumption that an election has been ordered, and held with a prohibitory result, would be premature, and mere dictum.

Beversed and remanded.