Hamilton v. Williams, 26 Ala. 527

CHILTON, C. J.

—Thе statute requires, that the bond of the county'judge shall be executed, payable to the Governor and his successors in officе, and “ conditioned for the faithful performance of the duties assigned him”; and further provides, that it, “ shall be filed in the office of the Secretary of State, subject to be sued on by any person or persons, for any injury, waste, or damage sustained in any estate, in consequence of any neglect or omission of taking good and sufficient security from guardians, executors, or administrators.”

The рresent action is on the judge’s bond, for failing to require the guardian of the plaintiff to renew his bond, or to give ‍‌‌​​‌​‌​​​​‌‌‌​‌‌‌​‌‌‌‌‌​‌​​​‌‌​‌​​​‌​​​‌​‌‌​‌‌​‍further security, — that which he had previously given having become insufficient by reason of insolvency and removal, &c, The question is, whether, under the statute, an actiоn lies for such a supposed breach.

Another section (§ 14) of the same statute which gives the action, as above stated, provides, that the guardian may be ordered to give further security, on proof that his sureties have become insufficient.

It is insisted by the counsel for the appellee, that the ordering of further security is a judicial, not a ministerial act; and they invoice the common-law rule, the correctness of which ‍‌‌​​‌​‌​​​​‌‌‌​‌‌‌​‌‌‌‌‌​‌​​​‌‌​‌​​​‌​​​‌​‌‌​‌‌​‍we acknowledge to the fullest extent, “ that a judge is exempt from a civil suit, or indictment, for any act done, or omitted to bo done by him, sitting as a judge.”—Yates v. Lansing, 5 Johns. 282-91, and authorities there cited, — affirmed in 9 Johns. 395. The wisdom and sound policy of this rule, is apparent to every оne who has correct views of the administration of justice ; for, if a judge is liable to answer in a civil suit for his judicial acts, for every judgmеnt he renders, at the instance of every party, who, blinded, it may be, by self-interest and partiality for his cause, but excited by the mortificаtion of defeat, may see proper to'sue him, he might be overwhelmed in litigation ; the citizens would soon lose all respect for the law and reverence for those who administer it; indeed, the independence of the judiciary, the great conservаtive department in every well-regulated government, would be destroyed, and no man would hold the office of judge, at' the peril оf being thus arraigned for every judgment he pronounces.— See Groenvelt v. Burwell, 12 Mod. 386; 1 Salk. 396; 1 Ld. Ray. 454.

Such was (and still is) the salutary common-law rule, еxcept so far as the same has been changed by our statutes.

The statute before us, notwithstanding -the general terms used in the condition of the bond, “ for the faithful performance of the duties assigned him”, specifies and points ‍‌‌​​‌​‌​​​​‌‌‌​‌‌‌​‌‌‌‌‌​‌​​​‌‌​‌​​​‌​​​‌​‌‌​‌‌​‍out the instances in which the bond may bе put in suit. It is “ subject to be sued on by any person, or persons, for any injury, waste, or damage sustained by any estate, in consequencе of any neglect or omission of taking good and sufficient security from guardians ”, &c. This latter clause in the section is supposed by thе counsel for the appellant to be mere redundancy ; but we think it hás an important office to perform. It prescribes the сases in which the bond may be put in suit; apd by thus particularizing the instances in which an action may be maintained upon it, its effect ‍‌‌​​‌​‌​​​​‌‌‌​‌‌‌​‌‌‌‌‌​‌​​​‌‌​‌​​​‌​​​‌​‌‌​‌‌​‍is, to limit thе operation of the statute to these particular eases, upon the maxim, “expresáo unius exclusio atterius.” If the judge, after having appointed a guardian, neglects or omits to take sufficient security, he is liable to be sued on his bond, if injury ensue to the ward in consequence thereоf. But suppose, when application is made to him for the appointment of a guardian, he should, in. his official capacity as judge, determine not to appoint one, and adjudge that the appointment pertained to the judge of another county, or that the property of the ward was within another jurisdiction ; now, however erroneous such a decision might be, it could not be pretended that the statute was designed to cover such case, or that by the common law the judge could be held respоnsible. In the case just supposed, he omits to take security ; but this omission is the result of his judicial action in deciding against the appоintment of a guardian. It is clear, therefore, that in order to maintain an action upon the bond in such case, for the omissiou to take security, the judge must be held responsible for an erroneous decision as judge, in failing to appoint a guardian that he might take frоm him security. The case supposed, we think, furnishes, in principle, a fit illustration of the case before us. As in that case, the plaintiff, in order to arrive at the omission which would constitute a breach of the bond, as defined by the statute, must impeach the judicial action or omission"'of th'e judge as judge; so here, as the judge, in his judicial capacity, must first make an order requiring further security from the guardian, and had no right to remove him or discharge the old securities .by the acceptance of a new bond, without such previous ordеr, ‍‌‌​​‌​‌​​​​‌‌‌​‌‌‌​‌‌‌‌‌​‌​​​‌‌​‌​​​‌​​​‌​‌‌​‌‌​‍the omission or neglect to require Or take security involves an inquiry into a judicial omission — the failure to hear proof and pass an order for further security, or on failure the removal of the guardian. It is obvious, therefore, that the gravamen of the- complaint is the judge’s omission to discharge a judicial, not a ministerial function. It is not the neglect or omission of taking good and sufficient security merely which is the burthen of the complaint, but the failure of the judge to order the^guardian to give such security, which order must bejmade and decidеd upon proof of the insufficiency of the sureties already on the bond, and thus involves a judicial investigation. The statute not embracing such omission of the judge, and the failure to take1 good security being dependent on it, no action lies for the failure to tаke such security. If the order had been made, and the judicial function involved in its adoption had been discharged, we are not рrepared to hold that the judge would not be liable on his bond for failing to take good security upon such order, equally as if he were taking security in the first instance. It would certainly fall within the mischief intended to be remedied by the statute ; but until then, the breach contemрlated by the statute does not accrue, and cannot. If the judge erroneously refuse to act, upon complaint for furthеr security, there is a remedy by mandamus ; if he corruptly refuse, or is guilty of malversation in office, the constitution and the statute (Code, §685) point out the remedy; but neither the common law, nor the statute, makes him liable to a civil suit for his acts or omissions done as a judge.—Phelps v. Sill, 1 Day’s Rep. 315.

Our conclusion is, that the demurrer was properly sustained to the complaint. The judgment must consequently be affirmed.

Case Details

Case Name: Hamilton v. Williams

Court Name: Supreme Court of Alabama

Date Published: Jan 15, 1855

Citation: 26 Ala. 527

Court Abbreviation: Ala.