66 Ala. 184 | Ala. | 1880
When a party has a clear legal right to demand from a ministerial officer the performance of a specific duty, and there is not a defined, adequate legal remedy, mandamus from the proper tribunal is the appropriate remedy to compel performance. The issue of warrants on the county treasury, in payment of claims the Commissioners Court have allowed and ordered to be paid, is a ministerial duty imposed on the judge of probate, in the performance of which he has.no discretion, unless the order of allowance is of itself, and on its face, an absolute nullity, imposing no duty, and conferring no rights. When on its face the allowance of the claim is valid, and is the instrumentality for the payment of a claim chargeable on the county, he is without discretion^his duty is plain and simple, to issue the warrant on the county treasury, in obedience to the order of allowance; and if he refuses, the Circuit Court of the county, having a general jurisdiction and superintending power over all inferior tribunals, and officers exercising ministerial power within its territorial limits, can by mandamus compel obedience. The' jurisdiction and pow'er of the Commissioners Court is exhausted by an allowance of the claim, and the order that a warrant on the treasury issue for its payment. If the judge of probate refuses obedience, they can nob punish him — an integral part, the presiding judge and clerk of the court — for a contempt, or for neglect to perform his duty; nor have they any remedy to correct his negligence or obstinacy. The remedy is in the general jurisdiction and superintending power of the Circuit Court of the county.
It is true, that no claims are chargeable on the county treasury, nor can be paid therefrom, except such as the law imposes on the county, or empowers it to contract. No officer of the county can charge it with the payment of other claims, however meritorious the consideration, or whatever may be the benefit the county may derive and enjoy from them, But it must not be understood that the statutes enumerate every claim chargeable on the county, and that no other claims than such as are enumerated can be charged upon it. The county is. a body corporate, compelled or subject to suit as a corporation, in several instances expressed m the statutes; and yet there is no express provision empowering it to employ and compensate counsel for the prosecution or defense of suits. The employment is a necessity, for an appearance by person is a mere impossibility. Compensation of counsel is a claim upon the county, which it lies within the jurisdiction of the Commissioners Court to allow, and order paid from the county treasury. Of what avail would be the capacity of the county to sue, if counsel could
The Court of County Commissioners has control of all the property of the county. A duty resting upon them is the erection and keeping in repair the court-house and jail; and for these purposes, they may make all necessary contracts. Code of 1876, §§ 817-18-20-23. The location of the county-site — the place at which the court-house and jail are to be erected and kept in repair, the courts of the county to be open, and all county offices established — is the matter not peculiarly of individual, but of common concern to all the citizens of the county. When in reference to it litigation arises, it can rarely assume a form in which the Commissioners Court, the representative of the corporate power of the county, legislative, judicial and executive, can stand as an idle, indifferent spectator, whatever may be the particular interests or views of the individuals composing it. These interests and views should be abnegated, and the interests of the county alone regarded; and the highest exponent of these interests • is the will of the majority of the electors, expressed at the ballot-box according to law, when its expression is by law required.
The litigation in which the commissioners for the location of the county-site for Franklin were involved, was in consequence of their obedience to the law from which they derived authority. In the performance of a public duty, it was competent for the Commissioners Court to have employed counsel to. defend the proceedings instituted against them. The county was, in fact, the real party in interest, and not the commissioners, who were the parties by name. Though these commissioners, without authority from the Court of County Commissioners, employed the counsel, their act was capable of ratification by the county commissioners. They could adopt it as their own, if they deemed it prudent so to do. The allowance by the court of the claim of the attorneys for compensation, and the order for its payment; was a ratification of their employment, acting retrospectively — placing the court and the county in the same relation to the attorneys in which they would have stood if the employment had proceeded originally from the court.
The judgment is reversed, and the cause remanded.
