State v. Ely, 43 Ala. 568

State v. Ely

43 Ala. 568 | Ala. | 1869

B. F. SAFFOLD, J.

William Falconer was elected tax collector of Montgomery county, at the election for State and county officers, held on the 4th, 5th, 6th, 7th, and 8th of February, 1868.

*574The legislature passed an act, August 1st, 1868, giving to tax collectors, elected at that time, sixty days from the date of the act to file their official bonds, and declaring that if, at the end of that time, the bond was not executed and approved, the office should be declared vacated. — Acts of 1868, p. 7. At the expiration of the sixty days, Falconer had not filed his bond. On the 2d of October, 1868, the commissioners court of Montgomery county recorded the following order : “ November 18 — Tax Collector. — Ordered that the office of tax collector be and the same is hereby declared vacant, and that the court do now proceed to fill the vacancy by appointment; whereupon George F. Stewart was appointed tax collector.”

On the 8th of October, 1868, the legislature passed an act enacting that the tax collectors of the State shall have until the 30th day of October next, within which to make and file their official bonds. — Acts 1868, p. 218.. On the 15th of October, 1868, Falconer tendered to the probate judge a bond admitted to be sufficient in every respect, which he refused to approve and to file, on the ground that Falconer had vacated his office by failing to give bond within the time prescribed, and that the vacancy had been filled, according to law.

Falconer then applied to the city court for a mandamus, to compel the probate judge to approve a sufficient bond. The refusal of the court to grant the writ is the error complained of.

Section 164, Revised Code, provides that if any officer» required by law to give bond, fails to do so within the time prescribed, he vacates his office, and the officer in whose office such bond is required to be filed, is commanded at once to certify the failure to the appointing power, and the vacancy must be filled, as in other cases. This section, more stringent than the act of 1868, has received a most careful scrutiny and construction by this court, in the case of Sprowl v. Lawrence, 33 Ala. 674. It is there decided, that an officer is invested with his title to an elective office by virtue of his election, and that the statute providing that on failure to file his bond within the given time, “ he vacates his office,” operates as a defeasance, and not as a *575condition precedent. An act of the legislature of 1854 (■Session Acts 1858-4, p. 102), which authorized sheriffs who had failed to give bond within the proper time, to do so at any time before the 1st Monday in March, 1854, and provided that if they gave such bond, they should not be subject to a forfeiture of their offices, is cited as a legislative interpretation of the section. It is said that upon any other interpretation, the act of 1854 would be unconstitutional, because the legislature may waive a forfeiture, but cannot elect a sheriff.

The statute of October 8th, 1868, is such a construction of that of August 1st, 1868, and of section 164. The mere failure of Falconer to file his bond, did not ipso facto work a forfeiture of his office.

The commissioners court is one of special powers. It does not possess authority to declare a forfeiture of the office of tax collector, unless the jurisdiction has been conferred on it by statute. Section 167, Eevised Code, requires notice' of the failure of an officer to file his bond, to be given by the officer in whose office the bond is required to be filed, by, or during, the first two days of the session of the circuit court, held in the county in which the officer so failing resides, next after such failure, to the solicitor of the circuit to which such county belongs. For what purpose this notice is thus to be given, is not stated, but the inference is plain that it was to enable the solicitor to bring the matter before a court competent to declare the office vacant. There can be no other reason, because no penalty is imposed on an officer for failing to file his bond in the first instance.

Even if the commissioners court had authority to declare the office vacant, the record shows no facts giving jurisdiction. The simple judgment is stated. The record of a court of limited jurisdiction should contain every fact essential to confer the jurisdiction.—Commissioners, &c. of Talladega v. Thompson, 15 Ala. 134; Malet v. Kenan, 22 Ala. 484. A declaration of the vacancy of an office, by a court competent to make the declaration, is a judicial act.—Peck v. Holcombe, 3 Porter, 329.

Mandamus is the proper remedy. The nature of the *576thing to be done determines the propriety or impropriety of issuing the writ.—Marbury v. Madison, 1 Cranch, 170. The act to be performed was, in its nature, ministerial. The principle applies to judicial officers, who, though not answerable for errors of judgment, however plain the mistake, are responsible for any injury which results from their failure to perform a ministerial duty east upon them by law.—Tennessee & Coosa R. R. Co. v. Moore, 36 Ala. 371; Ferguson v. Kinnard, 9 Clark & Finn. 279, 290. There is no other adequate legal remedy for the wrong complained of.

Note bv Reporter. — At a subsequent day of the term, Walker, Murphy & Winter, for appellee, petitioned for rehearing, on the ground that quo warranto is the remedy for appellant, and not mandamus; and in support thereof, filed the following argument: “ Stewart was appointed tax collector, and accepted the office; in fact, there is ■ now an incumbent of the office. Stewart had a right to be heard. It was necessary that the proceeding should have been in such a shape that Stewart could be heard. Whenever there is a controversy between two persons as to the right to an office, a writ of quo loarranto is the remedy, for in that proceeding, the conflicting claims can be adjusted. Unless Falconer was tax collector, he had no right to give bond. He had no right to have himself judicially declared tax collector, without affording the adverse party an opportunity to be heard. We refer the court to the following authorities : Tapping on Mandamus, pp. 231, 182, 67, 26, 27, 148, 100, 215, 166 ; Bonner v. The State of Georgia, 7 Ga. 479. Before Falconer can have his bond approved, he must be tax collector; therefore, his right to the office is a preliminary question, and Stewart is interested in it.”

The judgment is reversed and the cause remanded.

The following response was made thereto :

B. F. SAFFOLD, J.

A rehearing is asked by the appellee, on the ground of error in the opinion, that a man*577damus is the proper remedy, instead of a quo warranto, against the present incumbent.

It must be remembered that the application for a mandamus, in this case, is by one admitted to have been duly elected to the office of tax collector, seeking to compel the proper officer to approve his bond. If a writ of quo toarranto should be issued against him, who is now performing the duties of tax collector, the result of the trial would not necessarily be decisive of the case under consideration. A mandamus might still be required to procure the approval of the appellant’s bond, though the issue of the other proceeding should be against the incumbent. Besides, the mere approval of the bond of the appellant does not necessarily preclude the incumbent from testing his right to the office.

In Tapping’s Mandamus we find the following authorities in support of the decision already made : Mandamus is not the proper process for ousting an usurper holding an office under an election prima fade good, or even doubtful, and not merely colorable. — Marg. p. 182. If a party has been ousted of an office, by the election of another person to that office, the election not being merely color-able, but prima fade bona fide, his remedy is not by mandamus ; but if it be a mere colorable election, and clearly void, the court ought to, and will, grant the writ. There are, however, numerous cases in which the court has granted a mandamus, notwithstanding a remedy existed by quo warranto information. — Marg. p. 27. It seems, from these authorities, that a mandamus is often a concurrent remedy with quo warranto, and the proper remedy, when the election or appointment of the person holding the office is clearly void. The commissioners court could only fill a vacancy; they could not create one. Their declaration of a vacancy in the office of tax collector was void, and their appointment to the office was consequently void.

The application for a rehearing is denied.