Ex parte Candee

48 Ala. 386

• Court: Supreme Court of Alabama
• Decided: June 15, 1872
• Status: Published

Opinion

PECK, C. J.

Before entering upon the examination of the return of the Hon. John T. Cook, probate judge of Wilcox county, to the rule nisi in this case, ordered to be issued by this court at the January term thereof, 1872, it seems proper to consider and dispose of the motion, now made by said probate judge, to dismiss the petition in this behalf, upon which the said rule nisi was granted. Said petition states, that before petitioner made his application to this court for said rule nisi, he had, on his petition setting forth the same facts stated in his petition in this behalf, made an application to the circuit judge of the proper circuit, for a rule nisi on said probate judge, to show cause why he refused to approve of and file his (petitioner’s) official bond as sheriff of said county of Wilcox; and that said circuit court judge denied the prayer of petitioner’s said petition, and taxed him with the costs.

The said probate judge now insists that petitioner’s remedy in the premises was not by mandamus from this court, but on the denial of his said application by said circuit court judge, his remedy was by certiorari and appeal, to bring up and review the decision of said circuit court judge, and, therefore, he now here moves this court to dismiss said petition.

Although an appeal might have been taken to this court from the decision of the circuit court judge, was that the petitioner’s only remedy? Or might he not renew his application in this court, setting forth such a state of case as showed that the circuit court judge who made the decision erred to his prejudice, and that petitioner was entitled, by the case made before the said circuit court judge, to the relief he sought?

This was the course pursued in Ex parte Croom & May, (19 Ala. 562.) And this course, we hold, may now be pursued, notwithstanding the act of the 15th of December, 1868, (Pamph. Acts 1868, p. 410,) entitled “An act to allow appeals to the supreme court, in'ce'rtain oases.” That act provides, “ that appeals may be taken to the supreme court of Alabama, from the judgments of judges of the circuit and city courts, on application for writs of certiorari, supersedeas, quo warranto, mandamus, and other remedial writs,” &c.

We think it manifest, this act does not, and was not intended to, limit and control the powers of this court, and to direct the mode and manner in which it must exercise the powers conferred upon it by section 2, article 6, of the constitution, to give it a general superintendence and control of inferior jurisdictions. Said section declares, that “except in cases otherwise directed in this constitution, the supreme court shall have appellate jurisdiction only, which shall be coextensive with the State, under such restrictions and regulations, not repugnant to this constitution, as may from time to time be prescribed by law; Provided, that said court shall have power to issue writs of injunction, mcmdamus, habeas corpus,. quo warranto, aud such other remedial and original writs, as may be necessary to give it ‘ a general superintendence and control of inferior jurisdictions.’ ”

Under this section of the constitution, the legislature may impose such restrictions and regulations, not repug- ‘ nant to the constitution, upon the appellate jurisdiction of this court, but it has no power to limit or prescribe the mode and manner in which it must exercise its power to issue the writs therein named, and such other remedial and original writs as may be necessary to give it a general superintendence and control of inferior jurisdictions. If they could, the power thus conferred upon this court by the constitution might be so crippled and embarrassed, as to render it worthless for the great and salutary purposes contemplated by the constitution.

This court has the power to adopt its own practice and mode of proceeding, in exercising the powers conferred upon it by the proviso of this section of the constitution, and to so mould and fashion' it, as to fit it to the exigencies of each particular case.

In the case of Ex parte Groom & May, supra, which was an application on the part of the petitioners for the writ of habeas corpus to admit them to bail, after an application to a circuit judge for that purpose had been denied, this court says, “it is the duty of this court, in order to enable it to carry out the powers with which the constitution invests it, of exercising ‘a general superintendence and control of inferior jurisdictions,’ to adopt such course of proceeding as will make its control complete.”

This court also says, in the same case, “ it is important that the practice in such cases should be settled, and after the best deliberation which we have been enabled to bestow upon this branch of the case, we conceive the correct practice to be, for the prisoners, who conceive themselves aggrieved by the decision of the inferior jurisdiction in the matter of their discharge, to petition this court for the writ of habeas corpus, and such other remedial process as shall be necessary to render its control effectual, setting forth, under oath, such a state of case as shows that the court or judge who made the decision, erred to thejr prejudice; and that they are entitled, by the case made before such inferior tribunal, to the relief which they seek.” Here is a general idea as to the practice .to be pursued, when applications are made to this court for the benefits of the writs which it is authorized to issue, by virtue of the powers conferred upon it by said section of the constitution. But, as the mode of proceeding, in its details under one writ, would not be a suitable or convenient practice, in proceedings under other of said writs, bearing in mind the general idea, the court must, necessarily, be left to adopt such practice as will best suit the exigencies of each particular case, considered with reference to the nature and character of the writ necessary to be used- The practice that would be suitable in a case of habeas corpus, would not be suitable in a qase of mandamus, and this may be said with respect to the several writs anthorized to be issued by this court under said section of the constitution.

This, we hold, is not only consistent with the general idea of the practice that may be pursued in such cases, as indicated in the said case, Ex parte Croom & May, above referred to, but also with the case of Ex parte Simonton et at, in 9 Porter, 383. In such cases, the party aggrieved by the action of an inferior court or judge may elect to proceed by appeal, under the said act of the 15th of December, 1868, or by the practice indicated by this court before the passage of said act. That act provides a cumulative remedy, but does not, and can not, prescribe the only practice to be pursued in this court. For these reasons, the said motion to dismiss the petition must be overruled.

2. I now proceed to the consideration of the return of the defendant, the said John T. Coot, the probate judge of Wilcox county, to the rule to show cause why a mandamus should not issue to compel him to approve of and file in his office, petitioner’s official bond, as sheriff of said county of Wilcox. In such cases, the petition of the party at whose instance the rule to show cause is obtained, is treated as the complaint, in which the petitioner sets forth his title and the facts on which he claims a right to the relief sought by his application, and the defendant’s return is treated as a plea, in which he must either deny the facts stated in the petition, on which the petitioner’s claim to relief is founded, or it must state other facts sufficient in law to defeat the petitioner’s application. And these facts must be stated positively, and distinctly, and with such certainty, that the court may be able to judge of them, and determine whether they form an excuse or justification sufficient in law, or not. This strictness is required, because the petitioner can not traverse the return. It must be taken to be true, and if false, the petitioner’s remedy is an action for a false return. — Tapping, 353; Moses, 210. Every allegation of the return, therefore, must be direct, and be stated in the most unqualified manner, notinferentially or argumentatively, but with certainty and plainness. — Commonwealth, ex rel. Thomas, v. The Comm’rs of Alleghany Co., 32 Penn. 218; Tapping, 354, 357.

The same certainty is required as that which governs estoppels, indictments, or returns to writs of habeas corpus. 32 Penn., supra; Tapping, 353, Every intendment is made against a return to a mandamus. — Moses, 213; The People v. Kilduff, 15 Ill. Rep. 492; Tapping, 353.

A return to a, mandamus need not be single, but may contain several defenses or justifications, consistent with each other; and if one be sufficient, the return must be allowed as to that one.— Wright v. Fawcett, 4 Burr. 2041; Moses, 214. Where, however, inconsistent causes for not obeying a mandamus are stated' in the return, it must be quashed; for, taken as a whole, it is false. — Angelí & Ames on Cor. 457. So, when two or more causes, returned to a mandamus, are inconsistent, the whole must be quashed, because the court can not know which to believe, and it is an objection to the whole return.— The King v. The Mayor of Cambridge, 2 T. R. 456, 458.

Guided and governed by these authorities, we feel constrained to declare the defendant’s return in this behalf both uncertain and insufficient, and that the causes assigned for refusing to approve of petitioner’s official bond, as sheriff of said county of Wilcox, are not only inconsistent, but also repugnant to each other, and can not stand together..

In the defendant’s return, eleven different defenses are set up, eleven different causes assigned, to excuse or justify his refusal to approve of and file petitioner’s official bond. I do not deem it necessary to discuss and dispose of each one separately. It will be enough to show their uncertainty and insufficiency, and to point out wherein they are inconsistent and repugnant to each other.

The first two causes assigned by the defendant do not, either of them, deny the statements of the petition, or set up any fact or facts amounting to any legal excuse or justification for defendant’s refusal to approve of and file said bond.

In the first, petitioner’s title is admitted. It is admitted he was duly elected sheriff of said county of Wilcox, on the 7th day of November, 1871, and that said election was duly certified to the governor, and that on the 22d day of said month a bond was tendered with security, in the penalty of forty thousand dollars, payable and conditioned according to law, which securities defendant says were insufficient. This is neither an admission nor a denial that the bond made a part of the petition was not presented for defendant’s approval, or that it was not in all respects such a bond as the law required petitioner to present for approval. This cause is, therefore, both uncertain and insufficient.

The second cause merely states that defendant refused to approve of the bond presented, because he (defendant) was, and still is, satisfied that the securities were insufficient. This is no averment that the securities were in fact insufficient, and is, therefore, worthless as a defense.

The third cause states his refusal was, because the securities on said bond, without showing who they were, did not, separately or in the aggregate, own property in their own right, and subject to legal process, to the amount of the penalty of said bond, excluding exemptions, without averring that said bond was the bond named in the petition, or that the said bond was in fact insufficient. This cause consists of mere generalities, without any of that directness and certainty required in such returns, as to enable this court to - determine whether they form an excuse or justification effectual in law; besides, said cause is inconsistent with the matters stated in the eleventh part of said return.

The fourth, fifth, sixth and seventh causes, Or defenses, may be grouped and considered together, They are somewhat varied in the manner of their statements, but neither of them presenting, with certainty and explicitly, any issuable facts ; are evasive, containing no positive and plain statement of facts, showing any legal excuse or justification which the court can determine to be sufficient; resting mainly upon the ground that defendant was satisfied that the securities were insufficient; that they were not worth any thing over and above their debts and liabilities; that they were, as securities and principals, on official bonds and other legal bonds, given and executed within the limits.of the State of Alabama, then outstanding, unsatisfied, undischarged, and in full force and effect, to the amount of over one hundred thousand dollars, and that said securities were insufficient, &c. The said alleged bonds are neither set out nor described; not even the names of the persons for whom they are alleged to be bound, either as principal or sureties, are stated; nor when they were made, nor for what sums, nor to whom payable, is not stated. Which of said alleged bonds are individual bonds, and which official, is not known, nor for what officer or officers said bonds were given, is not disclosed. These vague matters, set up to excuse and justify the defendant, amount to mere bald statements, that said securities are on somebody's bonds, as principals or securities, and nothing more. If sued for a false return, how could its falsity be established, with the data here given? Or how could defendant be indicted for perjury, on such uncertain, indefinite, and undefinable statements? How could they be proved, to be false? No argument is necessary to show that these several causes are utterly deficient in the plainness, directness and certainty of statement required in returns of this sort. Mr. Chitty says, a general statement of facts which admits of almost any proof to sustain it, is objectionable. — 1 Oh. PI. 232. Such is eminently the character of the statements in defendant’s return. Even in ordinary pleading, the facts must be' stated with such certainty, as that they may be understood by the party who is to answer them, by the jury who is to ascertain their truth, and by the court who is to give judgment. — 1 Oh. PI. 233.

The. eighth cause assigned does not even pretend to set up any excuse or justification for refusing to approve of petitioner’s bond, &c., but contains a mere statement, that when petitioner inquired of defendant in what amount his bond would be fixed, he told him it would be for $40,000; that petitioner said he was satisfied with it.

The ninth sets up the application of petitioner to Judge Harper, the circuit court judge, for a rule to said defendant, to show cause why a mandamus should not issue, &o., which application was refused, &c., and that no appeal was taken by petitioner. In considering the .defendant’s motion to dismiss the petition in this case, we have shown that said proceeding presented no legal obstacle to the renewal of petitioner’s application to this court.

The tenth cause states, that on petitioner’s application to said Harper, circuit court judge, &c., after his refusal to grant the rule to show cause, &c., said Harper had fixed the amount of petitioner’s bond as sheriff, &c., and had approved of the same, and on the 25th day of January, 1872, had issued a peremptory mandamus to defendant, commanding him to record and file said bond, and that defendant had appealed from said decision to this court, and that said appeal was pending in this court.

It is perfectly apparent that these proceedings were not the cause why defendant refused to approve of and file petitioner’s bond, tendered to him for that purpose on the' 22d day of November, 1871, more than two months before the alleged order for said peremptory mandamus is charged to have been made, and, therefore, is no legal answer to the rule to show oause, issued by this court. It is foreign and irrelevant to the proceeding.

The eleventh cause assigned in said return is as follows, to-wit: “ Respondent, for further return to said alternative writ, says, that under the laws of the State of Alabama, as they stood on the 22d day of November, 1871, when said bond was presented to respondent for approval, this respondent was not the officer appointed by law to fix and approve of said bond of said Marshall G. Candee, as sheriff of said county of ’Wilcox.”

We can but regard this as a mere false pretense on the part of the defendant. He had, in fact, fixed the amount of petitioner’s bond at $40,000; had informed petitioner, on his inquiry, that securities on his bond, out of the county, would be required to make affidavits of justification, &c., and that petitioner would be required to obtain the certificate of the judge of probate, that he was personally acquainted with said securities, and believed them to be worth the amounts for which they had respectively justified, &c.; and when all this was complied with on the part of petitioner, and his bond was tendered for approval, defendant refused to approve of the same, without stating the above as a reason for his refusal. All this is stated in petitioner’s petition, and not denied, and besides, defendant’s eighth cause of return states that he told petitioner the amount of his bond would be forty thousand dollars; Eurthermore, this part of defendant’s return is utterly inconsistent and repugnant to the other parts of said return. If this was the true reason for refusing to approve of and file petitioner’s official bond, then all the others are false, and the whole return is bad, for the court can not know which to believe. — See The King v. The Mayor of Cambridge, 2 T. R., supra.

The entire complexion of this return has irresistibly drawn the mind of the court to the conclusion, that the real cause for refusing to approve of petitioner’s bond is yet undisclosed; that defendant’s refusal looks to some ulterior object or purpose, which is carefully kept from the knowledge of the court. However this may be, the return is bad for uncertainty, insufficiency and repugnancy. The petitioner’s demurrer, therefore, must be sustained, and the return must be quashed. A judgment on demurrer in such cases is final, and not respondeos ouster, but a peremptory mandamus issues. — 32 Penn., supra.

It is, therefore, the order and judgment of this court, that petitioner’s demurrer to the return of the defendant be sustained, and that said return be quashed; and that a peremptory mandamus issue, commanding the said John T. Cook, probate judge of the county of Wilcox, without delay, to approve of and file in his office the official bond of petitioner as sheriff of said county, tendered to him for his approval on the 22d day of November, 1871, being the same bond made an exhibit to, and a part of petitioner’s petition in this behalf.

It is also ordered, that said John T. Cook, probate judge, &c., as aforesaid, pay the costs of this proceeding in this court.