91 Tenn. 710 | Tenn. | 1892
This is a mandamus against the County Judge, and brought in the Circuit Court of Hamilton County by II. M. Stuart individually, without the intervention of the State, on relation of petitioner. The judgment was in favor of petitioner, and the County Judge appealed.
The petitioner claims to have been an overseer of a public road, and seeks to force the County Judge to draw his warrant for twenty-seven days’ work at $1 per day, and also for $28 for having furnished his own team to work the road. He gave no bond for costs, aud did not take the oath in forma pauperis, and swore to the petition before the Deputy Clerk of the County Court. The Judge
The Court erred in not dismissing the suit, both for reasons stated in the motion to dismiss and upon the merits.
First. — Because the proceedings should be in the name of the State, on the relation of the petitioner. Such is the approved practice in this State.
Second. — Because the writ must be returned like any other writ to a term of the Court, and not to the Judge at chambers. The word Court is used all through the statute upon the subject of mandamus. “ The writ is returnable to the Circuit Court.” Code (M. & V.), § 4311. The alternative writ commands the defendant to do the act required to be performed or show cause before the Court. Code (M. & V.), §4312. “If the answer deny any material facts stated in the petition, the Court may determine the issue upon evidence, or cause them to be submitted to a jury.” Code (M. & V.), § 4315. If the alternative writ is issued in vacation, it should be returnable to the next term of the Court, and not before the Judge at chambers.
Third. — Because no bond for cost was executed. Caruthers’ History of a Lawsuit, Sec. 587.
As above stated, upon the merits the, peremptory mandamus should not have been granted. Simply because the law fixes a dollar a day for overseers of roads, and the account named the number of days, and is sworn to as -required by statute, does not make it the duty of the County Judge to issue his warrant without an investigation of the correctness of the account. If such was the case, then a mandamus would be proper in case of a refusal, but here the defendant decided that the account was unjust and exorbitant, and therefore he refused to issue the warrant. The County Judge is the “accounting officer and general agent of the county,” and, as such, it is his duty “to audit all claims for money against the county,” and to audit and settle the accounts “of any person intrusted to receive or expend any money of
The County Judge has passed and acted upon the claim of petitioner, as presented, and his official judgment is against the claim, and the award of a peremptory writ would be to compel him to act contrary to his judgment. "Whether to issue the warrant or not, as claimed by petitioner, depends upon the exercise of official judgment by the defendant, and rests in his sound discretion, and cannot be controlled by mandamus. 5 Lea, 691; High, Ex. Leg. Rem., Secs. 101, 102. Only ministerial acts can be controlled. ' 2 Bax., 123.
The petitioner’s claim having been refused by the County Judge, he has his remedy by suit against the county for whatever may be justly due him.
The judgment of the Court below is reversed, the petition is dismissed, and petitioner will pay costs.