Foshee v. State Ex Rel. Messer , 210 Ala. 155 ( 1923 )

As a general rule a writ of mandamus will not issue to review an exercise of judicial or quasi judicial discretion, and this rule applies to the approval of official bond. Payne v. Spragins, 207 Ala. 264, 92 So. 466; Mobile Co. v. Cleveland, 76 Ala. 321; Ex parte Harris,52 Ala. 87, 23 Am. Rep. 559.

This rule, however, has an exception in this jurisdiction, for in some cases the writ of mandamus has been employed to correct errors of inferior tribunals, and to prevent a failure of justice where there is a clear right and there is an absence of any other adequate remedy, and it has also been employed to prevent an abuse of discretion, or to correct an arbitrary action outside of the exercise of a reasonable discretion. 26 Cyc. 189; Wilson v. Duncan, 114 Ala. 659, 21 So. 1017; Ex parte Tower Mfg. Co., 103 Ala. 415, 15 So. 836; Ex parte Dowe, 54 Ala. 258.

This respondent did not refuse to approve the security in question because of the insufficiency of the sureties, as the proof shows that it was ample, and, in fact, the respondent indicated that five of the signers were sufficient; so the only possible reason that may be inferred from the evidence is that he did not deem the security in proper form, or was not satisfied with the genuineness of some of the signatures. As to the former, he consulted counsel, and it nowhere appears that he was advised of its insufficiency as to form. In fact, it needed no advice of counsel to ascertain and determine this fact, as the statute only requires security for cost, and we do not see how the form presented could have been improved upon. Therefore, if this was the reason for the refusal, the same was capricious and arbitrary.

As to the other ground, and as stated in the original opinion, while the statute does not require an acknowledgment on the part of the sureties as to their signature, the respondent's desire for proof as to the genuineness of same was not unreasonable, and should have been furnished when the request was made, and was in part acquiesced in by relator's counsel, who agreed to do so.

Upon the former consideration of this case, however, we misapprehended the true state of the record on this point by concluding that the clerk demanded the acknowledgment of five of the securities in any event, and that relator's counsel agreed to comply therewith, furnished one, and in effect declined to furnish the other, and we here repeat that, if these were the true facts, the refusal of the respondent would not be revised by this court. In reaching this conclusion we were, perhaps, too much influenced by the testimony of Walker as to what the respondent said, and also labored under the impression that Gerald undertook, unconditionally, to furnish all five of the acknowledgments, and only furnished one — thus overlooking Gerald's version of the matter, especially on cross-examination, and which is not in serious conflict with the evidence of the respondent on this point, and only partially so by Walker's evidence. At any rate, even if there was a serious conflict, this case was tried without a jury, the evidence was ore tenus, and the conclusion of the trial court was like unto the verdict of a jury, and will not be disturbed, unless plainly contrary to the great weight of the evidence. Hackett v. Cash, 196 Ala. 403, 72 South, 52.

It was therefore open to the trial court to find that the respondent exacted these acknowledgments only in the event the respondent was advised that the bond was in proper form; that Gerald furnished only one at the time, because the party was going to leave on the next train, and did not then furnish the others because it was understood that respondent was to inform him if he approved the form, and whether or not he would require said acknowledgments.

Gerald testified:

"I said to Mr. Foshee that day that if he required it, if the form of the bond proves satisfactory, I would furnish him a certificate or other evidence of these men signing it; that was the condition he made, * * * and at the time he picked out those five men, and said that he was satisfied of the sufficiency of those five men on the bond. * * * He never informed me that the bond wasn't in form. * * * When I left, it was agreed we would have those men come to the clerk's office and admit or acknowledge that they signed that bond, provided the clerk required it, as stated. If the form was approved, he was to advise us then definitely of the conditions he wanted."

It therefore appears from one theory of the evidence, which was accepted, in effect, by the trial court, that the respondent would require proof of these signatures only in the event the form was sufficient, and as to which he would notify counsel before final action. It also appears that he declined to approve the security without notifying counsel as to the form, or that he desired proof of the signatures, and before giving relator's counsel an opportunity to furnish said proof. This being true, or being accepted by the trial court, the respondent's refusal was not in keeping with the understanding, was premature and arbitrary, and his action in this respect will be revised and corrected by the writ of mandamus, which was correctly awarded by the trial court.

We do not question the contention of appellant's counsel that it was essential to the contest of this election that the same be filed within 20 days after the result was declared, and that the filing of security for cost of the contest with the clerk, to be approved by him within said time, was a jurisdictional fact.

We cannot agree, however, to the suggestion of counsel that appellee lost the right to contest because steps were not taken to require and accomplish the approval within the said 20 days. If the respondent wrongfully failed or refused to approve the security, his conduct cannot cut off the appellee's rights, and he has the right to resort to the courts to compel the approval, and, when it is so ordered, the approval relates back to the time when it should have been made. It may be that the process for contesting elections may not be as liberal and broad as it could be, but the lawmakers never intended that the clerk could, by an arbitrary or capricious refusal to approve the security, cut off the contestant's rights unless he accomplished the impossible by taking legal steps and compelling the approval within said 20 days.

The trial court did not err to the injury of respondent in not letting him show he had been informed that some of the sureties were questioning their signatures, as this merely tended to show that he had a reason or right for requiring proof of the signatures, for the reason that we treat this case upon the assumption that he did have the right to require such proof, but he did wrong in declining to approve without notifying counsel that he desired same, and without giving him a chance to furnish it.

There was no error in overruling the motion to quash the writ or the demurrer to the petition for mandamus. Instead of being subject to the defects pointed out in the case of Longshore v. Turner, 137 Ala. 636, 34 So. 684, it seems to conform to the requirements there suggested. True, the petition does not describe in detail the security, but the same is attached as an exhibit and made a part thereof.

We also recognize the rule that mandamus will not be awarded to do useless things, or when the question becomes moot, but we do not regard this as such a case. The term of the office here contested has not expired, and will not for over five years, and notwithstanding the delay there is still much involved in the contest. Nor does the fact that Foshee's term of office has expired render this proceeding useless, or present a moot case, as section 4869 of the Code of 1907 provides for such proceedings against his successor in office, and for a revival of the proceedings against him, which said statutory provision seems to have been complied with by this appellee.

The application for rehearing is granted, the original opinion is withdrawn, the judgment of reversal set aside, and the judgment of the circuit court is affirmed.

Affirmed.

SAYRE, GARDNER, and MILLER, JJ., concur.

On Rehearing.