52 Ala. 491 | Ala. | 1875
This was a proceeding instituted by the appellee, claiming to be judge of probate of the county of
The jurisdiction conferred by the statute under which the proceedings were had and the order rendered is special, and to be exercised not by a court in term time, but by the judge of the circuit court, or of the probate court of the county, in which the person complained of resides. As the judge of the one or the other court, he is clothed with authority to entertain the complaint, when properly made, and to hear and determine it in the mode prescribed by the statute. The remedy to be pursued for a revision of the proceedings is not prescribed. Certiorari would, in the absence of a statute authorizing an appeal, be the only remedy to revise the action had under the statute. 1 Brick. Dig. 333, § 2.
At common law, mandamus was the remedy to compel the transfer or delivery of the books, records, papers, seals, and other paraphernalia of a public office to the person entitled to their custody; and by virtue of the writ the surrender of public buildings pertaining to the office could be compelled. High on Ex. Leg. Rem. part 1, chap. 2. The purpose of the Code was to provide even a more summary and adequate remedy than that mandamus would afford. The remedy thus provided is cumulative, not exclusive, and is of like nature with mandamus.
The act of December 15, 1868 (Pamph. Acts 1868, p. 410), authorizes an appeal to this court from the judgment of judges of the circuit and city courts, “ on applications for writs of certiorari, supersedeas, quo warranto, mandamus, and other remedial writs.” Circuit judges, as judges, have authority, which can be exercised in vacation, distinct from and independent of the jurisdiction of the circuit court, to grant writs of certiorari, supersedeas, quo warranto, mandamus, and all other remedial and original writs, which are grantable by judges at the common law. R. C. § 747. A like authority is generally conferred on the judges of city courts, by the statutes creating such courts, and is necessary to render the jurisdiction of the courts effectual. The purpose of this statute was to make the right of appeal coextensive with the authority the judges, as such, could exercise, as it is coextensive with every final judgment the circuit or city court may render. The pro
At a subsequent day of the term, the case having been duly argued and submitted, the Chief Justice delivered the opinion of the court on the merits of the case.
It is the duty of every public officer, on the expiration of his official relation, to surrender to his successor the ■ property of the office which the law commits to his custody. In such property he has no individual right or interest ,■ the title to it resides in the public, and of it he is merely custodian during his continuance in office. The duty is ministerial merely, no matter on what officer it devolves; and at common law, its performance was enforced by mandamus. High on Ex. Leg. Rem. §§ 78-4. The general assembly deeming the common law remedy too dilatory, and impressed with a conviction of the importance of avoiding the public injury which would ensue from protracted litigation between the outgoing and incoming officer over the property of the office, provided a summary remedy for compelling the delivery of books, papers, property, and money, by public officers to their successors. It is first declared that in all cases, in which it is not otherwise expressly provided, when any office is vacated, except by the death of the incumbent, all books, papers, property, and money, belonging or appertaining to such office, must, on demand, be delivered over to the qualified successor; a violation of the duty is a misdemeanor. On a refusal, after demand, to make the delivery, complaint may be made to the judge of probate of the county, or the judge of the circuit court, by the successor in office, and if the judge is satisfied by the oath of the complainant, and such other evidence as may be offered, that property pertaining to the office is withheld, he must make an order requiring the person withholding to show cause why he should not be compelled to deliver it. The person charged may discharge himself by making affidavit that he has made the delivery. If he does not make the affidavit, the judge must proceed to inquire into the circumstances, and if it appears that such property is withheld, must make an order committing the accused to jail until he makes the delivery, or is otherwise discharged by due course
Four members of the commissioners’ court, in vacation, by address to the judge of the circuit court of the ninth judicial circuit, of which Macon county is a part, complained that the official bond of the respondent, as judge of probate, was insufficient. Thereupon he was required to give an' additional bond. The requisition was in writing, and of it the respondent had personal notice. He appeared and tendered an additional bond, but the circuit judge not deeming the securities thereon sufficient declined to approve it. After some delays to enable the respondent to improve the bond, so that the judge could approve it, he failed to give a satisfactory bond, and by the express terms of the statute the failure operated a vacation of the office, and the unqualified duty of the judge was to certify the vacancy to the governor. The certificate was made, and the governor appointed and commissioned the complainant to fill the vacancy, who was qualified according to law. The judge of the circuit court in requiring an additional bond, and in approving or disapproving such bond when tendered, and in certifying a vacancy in the office on a failure to
When a vacancy occurs in the office of judge of probate subsequent to an election, on the governor rests the duty of filling it. The evidence of the appointment is a commission signed by him, under the great seal of the State, countersigned by the secretary of state. Public offices are public trusts created for the due and orderly administration of the law, the preservation of public peace, the convenience and advantage of the citizen, and the protection of individual right and interest. Public policy demands that they shall at all times be filled by officers bearing the proper evidence of their right and authority, and without doubt amenable for misfeasance, malfeasance, and nonfeasance. No uncertainty or doubt should rest in the public mind as to who is a legal public officer. It would be an evil of less magnitude if the sphere of official duty and the extent of official authority was indistinctly marked, than that the community at large should be fretted with doubt and uncertainty as to the individual from whom they could invoke the exercise of official authority, and demand the performance of official duty. Hence under our Constitution and statutes, nearly every public officer must bear a commission from the governor. Public offices are elective, and the returns of elections are made to the secretary of state, on whose certificate the commission originally issues. When subsequent to an election a vacancy occurs otherwise than by resignation, some public officer, ministerial or judicial, acting under the sanction of official oath, is charged with the duty of ascertaining and certifying the fact of vacancy to the governor. On this certificate an appointment is made, when it discloses the office is vacant. The commission of the governor, whether granted on a certificate of election, or a certificate of vacancy, is the highest and best evidence of who is the officer, until on quo warranto, or a proceeding in the nature of quo warranto, it is annulled by a judicial determination. Hill v. State, 1 Ala. 559 ; Brightly’s Lead. Election Cases, 314, and
There is no error in the record, and the judgment must be affirmed.