49 Ala. 88 | Ala. | 1873
Lead Opinion
— Tbe appellant, John P. Mitchell, was one of tbe sureties on tbe bond of Richard M. Nelson, as tbe general administrator of tbe County of Dallas, in tbis State, and as such be applied by petition to tbe probate judge of tbe said County of Dallas, “ to make such orders as may be necessary and proper to effect petitioner’s release from said bond in due form of law.” Tbe petitioner also asked, “ that tbe said R. M. Nelson may be required to give an additional bond, with sufficient security.” Tbe ground stated in tbe first petition is, that petitioner “is in danger of being made liable on said bond, and that in case be should be made so liable, be can have no adequate remedy against said Nelson, in consequence of tbe inability of said Nelson to discharge such liability.” This petition was amended, and in tbe amended petition tbe ground
The main question in this case involves the power of the Probate Court to release a surety on the bond of. the general administrator of the county. If any such power exists, it must be derived from some statute conferring it. It does not exist in the general administrator’s bond, nor as an incident of his office, unless he comes within that class of officers in which the surety may be discharged by authority of the statute, as a public officer. The section of the Code upon this subject, which refers to a public officer, is in these words : “Any person who is security upon the official bond of any public officer, required to be approved by the judge of the Circuit Court, or judge of probate, or chancellor, can discharge himself from such securityship whenever he is in danger of being liable on such bond, and can have no adequate remedy against his principal, in consequence of his inability to discharge such liability, upon making an application in writing, setting forth such facts.” Rev. Code, § 183. The first petition was evidently filed under this section of the Code ; and if the general administrator of the county is such a “ public officer ” as that mentioned in this statute, then the petition was properly filed, and the relief asked ought to have been granted. Revised Code, §§ 183 et seq. ad jin. articuli.
But is the.general administrator such “public officer” as that mentioned in the section of the Code above quoted ? I feel compelled to answer this question in the negative. “ An office is a right to exercise a public function or employment, and to take the fees and emoluments belonging to it; ” and “ An officer is one who is lawfully invested with an office.” 7 Bac. Abr. p. 279 ; 20 John. R. 493. A “ public officer ” is, then, a person who exercises the functions of a public office. Under
The second (or amended) application shows no ground whatever for the discharge of the surety ; and the application does not ask a removal of the general administrator. Rev. Code, § 2031. Nor does it appear that the judge of probate deemed it necessary to require an additional bond of the general administrator, in order to secure the interests of the estates confided to his charge. Without this, he could not require an additional bond, or remove him. Rev. Code, §§ 2032, 2037. Then, in neither aspect of the case made in the pleadings, was the applicant entitled to relief.
Dissenting Opinion
(dissenting.) — The question to be decided in this case is presented for the first time in this court. No general definition of the term “office” can be given so significant as to determine infallibly its application. Custom and usage have applied it to various employments, with more or less precision. The division into public and private is vague, because the duties of each are often intermingled.
Sections 183-192 of the Revised Code allow the discharge of a surety upon the official bond of any public officer required to be approved by the judge, of the Circuit, Probate, or Chancery Court, without proof of the. allegations which he must make and swear to ; “ and the exoneration of one operates as a discharge of all the other obligors. These sections do not apply to ordinary administrators, who are not deemed officers, and as to whom a different provision seems to be made. R. C. § 2018. Do they apply to the general administrator of the county ? Is he a public officer within their meaning ? In Whitworth v. Oliver (39 Ala. 286), administrators of particular estates are held to be trustees, and not officers. But Chancellor Clarke, before whom the case was primarily heard, ruled that the position was an office, and incompatible with the office of probate judge. The duties of the general administrator are the same as those of other administrators; but his position differs from theirs in the following particulars: 1st. He holds his office at the will of the probate judge. R. C. § 2031. 2d. He may resign the office without relinquishing the administration of the estates previously committed to him. R. C. § 2041. 3d. There can be but one for the county. R. C. § 2042. 4th. He is obliged to take any administration committed to him by the Probate Court. R. C. § 2000. All of these dissimilarities are indicia of a public office.
If he is not a public officer, his sureties are in worse condition than those of the public officers referred to, or of ordinary administrators. The first may surrender their principal at will, while the second, though they cannot do this, may expect the termination of their liability within some reasonable time. Besides, the responsibility is confined to a particular estate, the embarrassments of which they may know when they consent to be bound. The term of the general administrator’s office is indefinite, and may be long protracted.
The sureties of guardians, and of the general guardian for the county, may surrender their principal. R. C. §§ 2418,
When an employment may be properly called an office, its public or private character is dependent on the duty to be performed. For instance, a clergyman is a public officer when he performs the marriage ceremony ; and when he acts in his ordinary calling of teaching his congregation he is merely a private person. 4 Conn. 209. It may also be ascertained from its 'incompatibility with another office undoubtedly public. The probate judge could not be the general administrator of his county, because the one is under the control of the other, and may relate to the administration of every estate in the county. 5 Com. Dig. Office, p. 223. Another indication of its character is, that in case of vacancy the duties are to be performed by a public officer. When there is no general administrator, the estates which would fall to him are to be committed to the sheriff.
From all of these considerations, I hold that the general administrator is a public officer, within the meaning of section 183 of the Revised Code.