Merlette v. State

STONE, C. J. The defendant was indicted and convicted pf perjury, and the record presents for our consideration [44] the legality of the oath administered to the witness, under which he is charged to have committed perjury. The perjury is charged to have been committed before one Charles Eaber, a commissioner appointed for the purpose, in giving his testimony for complainant, in a certain suit in equity, in which Wesiey Wilson was complainant, and Emma Wilson was defendant. The commission was in due form, and was issued in the name of Y. M. Elmore, who was the register of said court. It was objected, however, and proved, that when the commission was issued, the said register was not in his office, that it was neither issued nor signed by him', but that it was issued and signed in his name by another, who was an. employe and assistant in his office. It is contended that, the issue of the commission was without authority and illegal, and that as a consequence, the said commissioner so appointed could not administer a lawful and binding oath, and that perjury cannot be predicated of any falshood the witness may have uttered while giving his deposition. Whether the oath so administered by Faber was legal and binding is the question in this case. Our statutes make no provision for the appointment of a deputy register of the Chancery Court. Code of 1886, § 732. Theregister’s duties are prescribed,some of which are judicial and some ministerial, § 736. Subdiv. 5 pertains to the taking of testimony by deposition, and the register’s duties therein. See also rule 60 of Chancery practice, p. 821. It will be seen that a party desiring to take the deposition of a witness files with the register his interrogatories to be propounded, “giving the names of the commissioner or commissioners.” These are then served on the opposite party, or his counsel. Such opposite party may file his objections to the commissioner or commissioners named, and if he should do so, the register passes on them, and allows them or disallows them. If he disallows them, or if none be interposed, it is then his duty to issue the commission to the person or persons named. This is a duty which the law itself has prescribed, and the register is ieft without discretion in the premises. Is such an act judicial, or ministerial ? No objection to the commissioner proposed was filed in this case. Defining the line of distinction between judicial and ministerial functions, it was said by this court in Grider v. Tally, 77 Ala., 422, “judicial power is authority vested in some' court, officer or person, to hear and determine when the rights of persons or. property, or the propriety of doing an act, are the subject matter of adjudication, Official action, [45] the result of judgment or discretion, is a judicial act. The duty is ministerial, when the law exacting its discharge, prescribes and defines the time, mode and occasion of its performance, with such certainty that nothing remains for judgment or discretion. Official, action, the result of performing a certain and specific duty arising from fixed and designated facts, is a ministerial act.” Citing authorities. Throop Public Officers, §§ 535, 538, 539; Flournoy v. Jeffersonville, 17 Ind., 169; 14 Amer. and Eng. Encyc. of Law, 100, in note. Another test for determining whether any given official power or duty is ministerial or judicial, is brought into requisition by the inquiry, would its specific exercise be enforced by mandamus ? If the power invoked be ministerial, and if the official act be the doing of a specific thing, then mandamus will lie to compel action, but not to control or' direct the shape such actiou shall take. The one is determinative in its purpose and effect, while the other simply puts the machinery of the law in motion, without commanding or directing what judgment shall be rendered. 14 Amer. and Eng. Encyc. of Law, 99, 108-9; 3 Brick. Dig., 625, §§ 6, 7. In Roney v. Simmons, 97 Ala., 88, we approved and affirmed a judgment of a Circuit Court, which, by mandamus, had commanded the doing of a specific thing, on facts which cannot be distinguished in principle from those presented in this record. See 14 Amer. and Eng. Ancyc. of Law, 100, in note. Judicial authority cannot, in the absence of statutory authorization, be delegated or vested in a deputy, or appointee of the rightful incumbent. Not so with ministerial power. It may be rightfully exercised by an assistant or deputy. Mechem on Public Officers, §§ 567-8; Throop Pub. Off., §§ 569, et seq. We have not discussed the question, whether, even if the commission in this case had been issued without authority, it would not have constituted the commissioner a quasi officer defacto, and legalized the oath administered by him to the witness, so as to make its violation a predicate for the charge of perjury. The authorities on this inquiry will be found in conflict. We need not, and do not undertake their reconciliation. Throop Pub. Off., §§ 653, et seq.; Mechem Pub. Off., §§ 328, et seq.; 18 Amer. and Eng. Encyc. of Law, 302, et seq.; Mayo v. Sionum, 2 Ala., 390; Lockhart v. City of Troy, 48 Ala., 579; Masterson v. Matthews, 60 Ala., 260; 3 Greenl. Ev., § 190; 2 Bish. Cr. law, 7th Ed., § 1026; Cary v. State, 76 Ala., 78. [46] We hold that the oath in this case was lawfully administered. . The defendant was described and charged in the indictment as Ben Mulette. He pleaded in the indictment that his name is Merlette. The plea is in proper form, and was sworn to. The City Court sustained a demurrer to this plea, and this ruling is complained of as error. In this ruling the City Court erred. Mu and Mer are not idem sonans, nor near enough thereto to meet the requirements of the legal rule. Lawrence v. State, 59 Ala., 61; Adams v. State, 67 Ala., 89; Munkers v. State, 87 Ala., 94; Lyons v. State, 5 Por., 236; Jacobs v. State, 61 Ala., 448, and other authorities on brief of counsel. Reversed and remanded.