State ex rel. Warmolts v. Keegan

The opinion of the court was delivered by Garrison, J. The clerk of a board of aldermen, in keeping a record of its proceedings, performs a ministerial duty that is imperative in its nature. If those proceedings result in a direction to him to omit one name from the roll of members, and to place another thereon, the clerk is as entirely without discretion in the premises as he is without responsibility for such result. His duty is to note the action of the body of which he is clerk, to keep a record of such action, and to announce it, in efficient form, when so required. His opinion as to the legal propriety of the official acts that he is called upon to register is of no sort of consequence. Any other view would invest a subordinate ministerial officer with supervisory and veto powers at.once alien to his office and-subversive of order and legislative control. The general rule as to mandamus in such cases is thus stated by Mr. High in-bis work on. the subject: “It may be asserted, as a rule df universal application, that, in the absence of any other adequate and specific legal remedy, mandamus will lie to compel the performance of purely ministerial duties plainly incumbent upon an. officer by operation of law or by virtue of his office and concerning which he possesses no discretionary powers.” High Mand., § 80. This citation states the established rule upon the subject, and is aptly descriptive of the precise situation disclosed by the case in hand. In the case of Leeds v. Atlantic City, 23 Vroom 332, which is relied upon by the defendant, the title of the relator de jure was res judicata, and on this ground the mandamus went. In the present case the title to office is not even drawn in question, and if it were, it could in no respect be tested by the mere non-performance of a purely clerical function. A peremptory mandamus may issue commanding the defendant to strike the name of August Winters off the roll of members of the board of aldermen of the city of Paterson, and to place the name of N. E. Warmolts thereon, with costs.