62 Ala. 215 | Ala. | 1878
It is the duty of the State Auditor to adjust the claims of all persons against the State, where provision for the payment thereof has been made by law. But he is expressly prohibited from giving any public defaulter any warrant for moneys due him from the State, except the balance which is due after the application of the amount due from the State to the extinguishment of the debt, interest and damages, if any are given by law, due from such defaulter. Code of 1876, § 596. The purpose of the statute is manifest, and is just and equitable. It is to confer on the State an unqualified right of retaining — of withholding the moneys in the public treasury, appropriated by law to a person who is indebted to the State, in satisfaction of such indebtedness, when such indebtedness arises from the breach of duty while occupying a public office. The right is not so broad as the right of set off, which the statutes confer on individuals, and no officer has any cause to complain that the State is thereby armed with a power of oppressing him. It is not necessary the default should have been ascertained by a suit against the officer. The Auditor, in asserting the right to retain, must act on the information furnished by the books and records of his department. His action is not conclusive. It does not establish that the person claiming the warrant is a defaulter, and that the right to retain claimed by the Auditor exists. The assertion of the default, and of the right of retainer, by the Auditor, has no more force than has the refusal by an individual to answer a demand against him because he has a set off. When he is sued on the demand the set-off must be pleaded, and must be proved, if it is not admitted. The remedy against the Auditor, is by mandamus; and his answer or return averring the default and the right to retain may be controverted and the facts put in issue, with the same facility that the fact of set-off when claimed in a suit between individuals may be controverted. — Code of 1876, § 3601. The answer was not in this case controverted, its truth was admitted by the demurrer, and being admitted, if the court had compelled him to draw the warrant in favor of the relator, it would have compelled him to violate the statute. A mandamus will lie to compel inferior tribunals, or ministerial officers to perform duties required by law. It will not lie to compel an officer to do that which it would not be lawful for him to do without its mandate. — State v. Judge, 15 Ala. 740. In other words, it does not create duties and compel their performance, but it compels the performance of duties the law has created.
The right of the State to retain, and the duty of the Auditor to withhold the warrant, does not depend upon the fact,
The judgment is affirmed.
