Whitesides v. Stuart

Lea, J. 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 [712] issued the alternative writ in vacation, and made it returnable to a day in vacation, commanding the County Judge to draw his warrant or show good cause for not doing so. On the return day of the writ, and before the Circuit Judge, at chambers, the County Judge appeared, and moved to quash the alternative writ and dismiss the suit, assigning, among other reasons, that the proceeding is not brought in the name of the State on relation of petitioner; because the writ is not made returnable to a term of the Court, but to a day in vacation; because no security was given for costs, and because the petition is not supported by affidavit before any official authorized by law. To these actions the County Judge excepted, and obtained leave to rely upon the several grounds of motion in his answer. Thereupon the answer was filed, relying upon the grounds of motion, and' making, in addition thereto, several defenses. Among others, that petitioner’s claim was not presented to defendant and sworn to as the statute required, and demand made for a warrant; that he refused to issue the warrant because the claim was unjust, exorbitant, and not owing by the' county. Issue was joined • upon the several defenses. On the return day, in vacation, the Circuit Judge, on application of defendant, continued the hearing until the first day of the regular term of the Court. At the regular term the case was heard and judgment rendered against the County Judge, ovenmling his motion to dismiss, adjudging [713] Ms return insufficient, and awarding a peremptory writ for tlie amount claimed by petitioner. It was agreed, upon the hearing, that the claim of petitioner was properly sworn to, and the County ■ Judge refused to issue the warrant because the account was exorbitant and entirely too much, and the refusal was for this reason alone. 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. [714] Fourth. — Because the petition was not sworn to-as required by law. It was sworn to before the Clerk of the County Court. Our statute (M. & V. Code, §4310), taken from. Sec. 1, Ch. 52, of the Acts of 1881, entitled “An Act to regulate the practice on writs of mandamus,” is as follows: “That the Circuit Judges of this State shall have power to issue writs of mandamus, upon petition, supported by affidavit, before any Judge, Justice of the Peace, of Clerk of any Circuit Court.” It will thus be seen that, by the very terms of the statute, the affidavit must be made before a Judge, Justice of the Peace, or Clerk of the Circuit Court. 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 [715] the county,” and. to minutely examine and settle the accounts of the county officers. Code (M. & V.), § 582, subsec. 8, and § 485, subsecs. 4, 6. 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.