Chisholm v. McGehee

BYRD, J. The rule seems to be firmly established, that where a party applying for a writ of mandamus has another legal and specific remedy, the court will not grant the writ. It is a high prerogative writ, and never to be resorted to, except where otherwise justice would be obstructed.—6 Bacon’s Abr. 419, 481; Mead v. Dunn, Minor, 46; Jones, Ex [196] parte, 1 Ala. 15; Mansony, Ex parte, 1 Ala. 98; Tarver v. Commissioners’ Court, 17 Ala. 530; Ex parte Elston, 25 Ala. 73 ; Tennessee & Coosa Railroad Co. v. Moore, 36 Ala. 372. In the application of the above rule, the adjudications are not uniform and harmonious. We propose to adhere to what we conceive the current of the decisions of this court, which, in the main, have been sound, and consistent with well settled principles. We shall confine this opinion to the case before us, which involves the general power of the courts to require the comptroller to issue a warrant to persons claiming a debt or salary from the State. Is the case made by the record one in which the appellee has the right to require the appellant to issue a warrant on the treasurer ? Among the duties imposed by section 365 of the Code upon the comptroller's one “to draw warrants on the treasurer, for the payment of all moneys directed by law to be paid out of the treasury, in favor of the person authorized to receive the same; stating in such warrant on what account the same is due, and, in cases of special appropriation, referring to the law under which it is drawn.” Section 37 of the 4th article of the constitution provides, that “no money shall be drawn from the treasury, but in pursuance of an appropriation made by law.” By section 3170 of the Code, the treasurer is required “ to pay all warrants drawn, under authority of law, by the comptroller on the treasurer, and to pay no money out of the treasury, except oh the warrant of the comptroller.” Under the 3d section of an act approved December 9th, 1862, (Pamphlet Acts, 57,) the governor was authorized to appoint a “ salt commissioner,” who should “ be allowed for his services reasonable compensation, to be fixed by 'the governor, not to exceed the rate of two thousand five hundred dollars per annum”; and it further provides, that “A. G. McGehee, for the services heretofore rendered by him as salt commissioner, under appointment of the governor, shall be allowed the compensation provided for in the preceding part of this section.” The 5th section of the act appropriates one hundred thousand dollars, “out of any money in the treasury not otherwise appropriated,” to carry out the provisions of the act. This is an appropriation [197] out of a specific fund, if any was then in the treasury not otherwise appropriated ; and it would seem from th e language of the act, to be under the control of the governor, and not of the comptroller. The above acts are the only ones which make any provision for the compensation of the salt commissioner, and any appropriation which can be construed into an authority to any officer of the State government, to pay the appellee for his services as salt commissioner. All the general appropriation laws authorize the comptroller to draw his warrant on the treasurer, for the several amounts appropriated. This is in strict conformity to the constitution, and to the provisions of section 365 of the Code. The comptroller, unless expressly authorized by law, has no power, or right, to draw a warrant on the treasurer for the payment of any claim. The act approved December 9th, 1862, referred to, does not authorize the comptroller to draw any warrant on the treasurer, for the payment of the compensation, prior or future, of the appellee as salt commissioner. The act, at most, only authorized the comptroller to draw a warrant in favor of the governor, for the amount appropriated, to be paid “ out of any money in the treasury not otherwise appropriated.” The act imposes no duty on the comptroller; and if he was authorized to issue a warrant in favor of the governor, it was not by any provision of that act. None of the cases above cited from the decisions of this court are in conflict with these views, but all are in harmony therewith. In the case of The Tennessee & Coosa R. R. v. Moore, (supra,) the governor was required by law to draw a warrant on the treasurer; and this court held, that this duty could be enforced by mandamus. But, upon the following authorities, it is to my mind questionable, whether this court has the right or power to enforce by mandamus any duty imposed upon the governor of the State by law. Hawkins v. The Governor, 1 Pike, 570; Law v. Towns, 8 Georgia, 360; People v. Bissell, 19 Ill. 259 ; State v. Governor, 1 Dutch. 331; Houston R. R. Co. v. Randolph, 24 Tex. 317; Dennett, petitioner, 32 Maine, 508 ; Mauran v. Smith, [198] American Law Register, for 1866, p. 630, (August No.); and authorities cited in the above cases. Sections 365 and 370 of the Code, construed together, clearly show in what cases the comptroller is authorized by law to draw a warrant on the treasurer; and neither the Code, nor any subsequent statute, having authorized the comptroller to draw a Warrant in favor of the appellee, the former properly refused to do so.—Ex parte Lynch, 2 Hill, (N. Y.) 45 ; Lynch v. The Mayor, 25 Wendell, 680; Tully, Ex parte, 4 Pike, 220. If the appellee is entitled to recover any thing from the State, he is nob left without an adequate and specific remedy, but is authorized by law to sue in the courts of the State; and when he obtains a judgment, the law provides a mode of payment; and therefore the extraordinary procedure by mandamus is not allowable.—Code, §§ 2133, 2140, and authorities above cited. The true rule on this question may be thus expressed : This court will not require any officer to do an act, which is not specifically and especially authorized by law, at the instance of another, in a proceeding by writ of mandamus; and that the comptroller is not authorized to issue a warrant on the treasurer, unless so required by law to do. It results, that the judgment of the circuit court must be reversed, and the proceedings in that court be dismissed, at the costs of the appellee. Let a judgment be entered accordingly. Walker, C. J., not sitting.