Simon Towle, Comptroller, Appellant, vs. The State of Florida, ex rel. Fisher, Sheriff, 3 Fla. 202

DOUGLAS, C. J. This is a snit instituted in the Circuit Court of the Middle Circuit rof this State, wherein Alfred A. Fisher, Sheriff of Leon County, by .petition complains, that at the October Term of that Court, in the year 1848, one Elijah B. Clark was indicted by the Grand Jury for .an assault and battery : that the petitioner rendered whatever service was required of him in the prosecution of said Clark, for which service he was entitled to the fees given by the statute, which, ac•cording to his account annexed, amount to $58 52-100.

That said Clark was acquitted, and said fees arc properly chargeable to the State, there being no prosecutor endorsed on said indictment. That he, the petitioner, had presented the said bill of costs to Simon Towle, Comptroller of the State, to be audited and paid, but the said Towle refused to allow the same. Wherefore, he prayed the Court to grant a writ of mandamus to be directed to tho said Simon Towle, Comptroller, &c., commanding him to allow and pay the said bill of costs, or else to show good and sufficient causo why the same should not be allowed and paid.

It does not appear by tho record whether the alternative mandamus so prayed for, was granted or not.

But on the 9th November, 1849, the said Simon Towle, Comptroller, filed his answer, admitting the facts charged in the petition, so far as related to the rendition of the services and the correctness of the account exhibited therefor, but denying that the State was bound to or ought to pay it, and shows for cause that the law requires “ in all cases of assault and battery, trespass and libel, that a prosecutor shall be set at the foot of the indictment, who shall be liable for costs on failure in the prosecution.” That the account of the relator was “ for costs” in a case of assault and battery, coming precisely within the provisions of that law, that a prosecutor should, therefore, have been set at the foot of the indictment, and he would be the party liable to pay the account of the relator and not the State.” The Circuit Court held the answer of the respondent insufficient, and awarded a peremptory mandamus against him the said Simon Towle, Comptroller, áse., commanding him forthwith to audit, allow and pay the said bill of costs of said petitioner, amounting to the sum of $58 52-100.

From which judgment the said defendant appealed to this Court, and has assigned for error— First. The Court erred in awarding a writ of mandamus in this case. Second. The Court erred in deciding that it was a proper case for mandamus.

We deem it proper to state “ in limine” in this case, that the Comptroller was right as to the requirement of the statute — that a prosecutor should be set at the foot of the indictment in such a case, nor is the provision, according to our view of the matter, merely directory ; it is a positive requisition, and an indictment returned without a prosecutor endorsed upon it, is invalid, and might be quashed on motion ; but if the defect escapes the notice of the defendant and his counsel — or if they do not choose to avail themselves of the error; and process issues upon it, the officer of the Court is not bound to inquire into the regularity of the proceedings ; his duty is to obey the mandate of the writ.

Tarlton vs. Fisher, 1 Douglas, 671. Camp vs. Moseley, et al., 2 Flor. Rep., 195. Gott vs. Mitchell, 7 Blackford Reps., 270. Parsons vs. Loyd, 3 Wilson’s Reps., 345, 376. In this last case, Lord Ch. J. De Gray remarks in substance, that the plaintiff was illegally imprisoned under a judgment sued out against him, which is a mere nullity — he has been unlawfully injured, and must have a remedy — but he has none against the officer who is not to exercise his judgment touching the validity of the process in point of law, but is obliged to obey the commands of the Courts, &c.

The case in 7 Black., 270, goes further, and shews, that if the Sheriff has notice of the irregularity of the process, still if the writ was legal upon its face and showed jurisdiction in the justice, the officer was bound to obey it. Here the process was regular, no question arose about it, the Sheriff was bound to obey it. To withhold the payment of his fees, for the cause assigned, would be-to punish him for the wrong of some one else, if indeed any fault was committed, but non constat — that any was committed ; the whole may have been the result of inadvertance.

The fees of the Sheriff, at all events, so far as appear by this record, should have been allowed and paid, and the Comptroller, we have no hesitation in saying, came to a wrong conclusion, when he decided that the State-ought not to pay these costs, and therefore rejected the account. But the more important question is, whether it is competent for this Court to correct the error — in other words, is this a proper case for a mandamus. “ The principle is admitted (said Tucker, Justice, in the Attorney General vs.

Turpin, 3 Hen. and Mun., 557,) by every writer on the law of Nations, that the Commonwealth can neither be made liable to its own citizens in its own Courts, beyond the tenor of its own engagements, nor be sued in its own Courts in any other manner than that expressly permitted bylaw. ’’But although a State cannot be called upon to defend itself in a foreign Court, or in its own Courts, without its consent, the honor and justice of every State require that an independent tribunal should be appointed within itself, to decide upon all claims against the public, and not leave them to the decision of a popular assembly, improper from the nature of its existence, as well as from their numbers, to decide upon contracts made, that is to say, to decide what the contracts are, and whether they will perform them or not.

Pendleton, President in Comm. vs. Beaumarchais, 3 Call, 369. The Legislature of Virginia has provided such a tribunal, by allowing an appeal from the auditor of public accounts to the judiciary. Ibid. That is, by a petition of the party who may feel himself aggrieved by a decision of the auditor, to the High Court of Chancery or the Superior Court of law holden in the city of Richmond, according to the nature of the case, for redress. 2 R. C., 1819, page 2, sec. 6. 1 Robinson’s Prac., 33.

The mandamus being in its nature what is termed a prerogative writ, issuing only from the tribunal which represented judicially the King himself, was extended originally to matters rather of a general public nature, than to such as affected the rights of a particular subject, as to cases of some breach of the peace, disobedience of law-, or neglect of official duty, and, therefore, we are to construe, rather as an extension than as a restraint of its original uses-, what is given by Comyn, Title Mandamus A, where he says, “ The Court of King’s Bench has power, by writ of mandamus, to correct all extra judicial errors which tend to a breach of the peace, oppression of the subject, or other mis-government.” But long subsequently to Comyn, we find the Court of King’s Bench, 3 Burr, 1267, remarking, that “ within the last century, it has been liberally interposed, for the benefit of the subject, and the advancement of justice.” This case, which was decided in 1762, was a mandamus to trustees, to admit a dissenting minister; (2 Term Rep., 259,) and Lord Mansfield observed, that “ a mandamus is a prerogative writ, to the aid of which the subject is entitled, upon a proper case previously shown to the satisfaction of the Court.

It was introduced to prevent disorder from a failure of justice, and defect of police ; therefore, it ought to be used upon all occasions, where the law has established no specific remedy, and where in justice and good government there ought to be one.” This remark, however, is to be qualified by the cotemporaneous observation of the same learned judge, which he frequently repeated, that “ it was a very beneficial writ, but that the best mode of preserving it, was to be sparing in the use of it.” And the fact that there is no other remedy does not seem to be sufficient in every case to justify the use of it; for in Rex vs.

The Justices of Wilts, 2 Chitty’s Reps., 257, where a mandamus was refused, Bailey, Justice, in reply to the counsel, that there was no other remedy, said': “ There are many cases where there is no other remedy against the Sessions, where we should not interfere and in Wilson vs. The Supervisors of Albany, 13 John. Rep., 414, the Court, in refusing a mandamus, said: “It may be a hard case, and the party may be remediless, but that consideration cannot induce us to grant an unfit remedy.” The principles which govern the Courts in issuing writs of mandamus (said Ch. Justice Tilghman, in Griffith vs.

Cochron, 5 Binney’s Reps., 103,) are well understood, and the counsel who argued this case have not differed in that respect. Where a ministerial act is to be done, and there is no other specific remedy, a mandamus will be granted to do the act which is required; but where the complaint is against a person who acts in a judicial or deliberative capacity, he may be ordered by mandamus to proceed to do his duty, by deciding according to the best of his judgment , but the Court will not direct him in what manner to decide.

This was the principle adopted by the Supreme Court of the United States, in the case of the United States vs.

Lawrence, 3 Dallas’ Reps., 42, where it was sought to compel a District Judge to issue a warrant to arrest an alleged deserter from the French naval service, under a treaty stipulation, and in which it was the clear and unanimous decision of the Court that the District Judge, having acted judicially in deciding that the evidence was not sufficient to authorize his issuing a warrant, the Supreme Court, however it might differ in opinion from the Judge as to the sufficiency of the proof, had no power to compel him to decide according to the dictates of any judgment but his own.

In the case of the Life Insurance Company of New York vs. Adams, 9 Peters' Reps., 602, the same principle is recognized, and Chief Justice Marshal said : “On a mandamus, a Superior Court will never direct in, what manner the discretion of an Inferior Court shall be-exercised,.but will in a proper case require the Inferior Court to decide. In' the case of The Commonwealth vs. The Judges of the Common Pleas of Phila. Co., 3 Bin.

Reps., 273 to 286, the Court held, that “ a mandamus cannot go to an Inferior Court to compel them to make any particular decision, but merely to decide.”— “ Where a Judge acts in his judicial capacity, as in deciding on the propriety of issuing a warrant, the Supreme Court will not grant a mandamus to compel him to decide according to any judgment but his own.”’ 6 Bac. Abr. Ed. of 1848, page 437, title Mandamus. In this case, The United States vs. Lawrence, 3 Dallas, 42—Ex parte Roberts, 6 Peters, 216—Ex parte Davenport, 6 Peters, 661. Life & Fire Insurance Company of New York vs.

Wilson, 8 Peters, 291—Ex parte Martha Bradstreet, 8 Peters, 588—Life & Fire Insurance Company New York vs. Adams, 9 Peters, 573—Postmaster General vs. Trigg, 11 Peters, 173—Ex parte Jesse Hoyt, 13 Peters, 279, were cited. A Court may be compelled by mandames to proceed to judgment,. but it must exercise its discretion as to what that judgment shall be. The Board of Police of Attala Co., vs. Grant, 9th Smedes & Mar. 90. Where the Court or officer has a discretion, the Supreme Court Will not grant a mandamus to control that discretion. 6 Bac. Abr.

Ed., 1848, page 420, title Mandamus, and authorities there cited.— In Ex parte Hoyt, 13 Reters, S. C. R., 290, Mr. Justice Story, delivering the opinion, said: “ It has been repeatedly declared by this Court, that it will not, by mandamus, direct a Judge what judgment to enter in a suit, but only will require him to proceed to render judgment.

There seems to have been at one period much uncertainty and confusion in regard to the application of the writ of mandamus, but it arose from the character of the persons to whom the writ was to be directed, and the objects sought to be accomplished by it, rather than from the nature of the acts complained of. The broad distinction between a direction to an inferior tribunal to act, and a direction to it how to act, seems to have been at all times well observed, at least until very lately. Judges of Oneida C. P. vs. The People, 18 Wendell, 96. We have noticed that in the case of The People vs.

Superior Court of New York, 5 Wendell, 114, Mr. Justice Sutherland, who delivered the opinion of the Court, advanced the following propositions-: First. That a writ of mandamus lies where a party has a legal right, and no other appropriate remedy. Second. That it does not lie to an inferior tribunal, where such tribunal has the right of exercising its discretion. Third. That the discretion which the Supreme Court cannot control is one governed by no fixed legal principles. Fourth.

That in all cases where an inferior Court is bound to proceed according to established legal principles, and it is alleged that an error has been commitred, the Court has power to issue a mandamus — and 'if error has intervened, the same obligation exists to issue the writ, as to reverse or affirm a judgment upon a writ of error. This case, which was a mandamus to the Superior Court of New York, requiring it to vacate an order made by it for a new trial, on account of newly discovered evidence, is disapproved and overruled in the case of The Judges of the Oneida C. P. vs.

The People, above cited, and all except the second proposition — on which the Court in the last case bases its decision — triumphantly refuted.

The former is said to be the first case in which a manifest tendency is disclosed to extend jurisdiction by mandamus, over the judicial acts of an Inferior Court, which was acknowledged as acting within the scope of its own powers; and the Court of Errors, in reviewing it, remark upon the fourth proposition, that where the action of a Court is prescribed “ by established legal principles,” it is not a case of legal discretion, but of legal necessity, and can only occur where questions of law, and not questions of fact, are involved. The case of Decatur vs. Paulding, 14 Peters S. C.

Reps., 521, was an application for a mandamus to the Secretary of the Navy, to compel him to pay to Mrs. Susan Decatur a pension which she claimed under a resolution of Congress. Mr. Justice Catron, after stating reasons somewhat at length why the writ ought not to have been issued, said, “ The origin of the opinion that public money could be reached through such instrumentality, is of recent date.

Its history will be found in the case of Stockton & Stokes vs. the Postmaster General; money was not there asked in a direct form, and the Court put the ease on the express ground that the defendant “ was not called upon to furnish the means of paying any balance that was awarded against the Department by the Solicitor of the Treasury.

Ho was simply (say the Court) required to give the credit,” and this was no more an official act, than the making of an entry by the clerk, by order of a Court of justice ; it was in every just sense a ministerial act.” Ibid, 516, and 12 Peters, 614. “ Had it not been placed on this narrow ground the decision could not have been made.” In the case of Brashear vs. Mason, which was another attempt to compel the Secretary of the Navy, by means of a writ of mandamus, to pay a claim against the Government — the Supreme Court of the United States say, “ In the case of Mrs. Decatur vs.

Paulding, 14 Peters, 497, it was held by this Court, that a mandamus would not lie from a Circuit Court of this District to the Secretary of the Navy to compel him to pay a sum of money claimed to be due to her as a pension under a resolution of Congress. There was no question (say the Court) as to the amount due, if the plaintiff was properly entitled to the pension, and it was made to appear affirmatively on the application, that the pension fund was ample to satisfy the claim. The fund was also under the control of the Secretary, and the money payable on his own warrant.

Still the Court refused to inquire into the merits of the claim of Mrs. D. to the pension, or to determine whether it was rightfully withheld or not by the Secretary, on the ground that the Court below had no jurisdiction over the case, and therefore the question is not properly before this Court on the writ of error.

The Court say “ that the duties required of the Secretary under the resolution were to be performed by him as the head of one of the executive departments of the government, in the ordinary discharge of one of his official duties; that, in general, such duties, whether imposed by act of Congress or by resolution, are not mere ministerial duties ; the head of an executive department of the government, in the administration of the important concerns of his office, is continually required to exercise judgment and discretion, and the Court could not, by mandamus, act directly upon the officer, and guide and control his judgment or discretion in the matters committed to his care in the ordinary discharge of his official duties.” “The Court distinguish the case from Kendall vs. the United States, 12 Peters, 524, where there was a mandamus to enforce the performance of a mere ministerial act, not involving on the part of the officer, the exercise of any judgment or discretion.” And the principle of the case of Mrs.

Decatur was held to be decisive of that of Brashear vs. Mason. See 6 Howard’s S. C. Reps., 101, 102 ; and so we deem it decisive of this case. The Comptroller of this State, in the administration of the important concerns of his office, is continually required to exercise judgment and discretion, and this Court cannot, by mandamus, act directly upon him and guide and control his judgment and discretion in the matters committed to his care in the ordinary discharge of his official duties. The question in the case of Mrs.

Decatur, as here, was one purely of law ; was she entitled to the pension claimed ? there was no question as to the amount due, if she was properly entitled to the pension, and by reference to the case it will be seen that this question rested entirely upon the construction of

an act and a resolution of Congress. To show that the Comptroller has discretion and judgment to .excreise, it is only necessary to refer to the act creating the office, act of July 23, 1845, pamphlet laws, pages 16, 17.

Thompson’s Digest, pages 31, 32, Nos. 5 and 6, by which it is made “ the duty of the Comptroller to examine, audit, adjust and settle the accounts of all the officers of this State, and any other person or persons or corporation, in any wise entrusted with, or who may have received any property, funds or moneys of this State, or who may be in any wise indebted or accountable to this State for any property, funds, or moneys, and require such officer, person or persons, or corporations to render full accounts thereof, and to yield up such property or funds according to law, or pay such moneys into the treasury -of this State, or to such officer or agent of the State as may be appointed to receive the same, and on failure to do so, to cause to be instituted and prosecuted, proceedings, criminal or civil, at law or in -equity, against such person or persons or corporation, according to law.” “ The Comptroller of this State may demand and require full answers on oath from any and every person, party or privy to any account, claim or demand against or by the State, such as it may be 'his official duty to inquire into, and such answers he may require to 'be 'in writing and to be sworn to before himself or before any judicial officer, or justice of the peace, or clerk of any Court of this State, so as to enable said Comptroller to decide as to the justice or legality -of such account, claim or demand.” To decide, of course requires reflection — the exercise of judgment and discretion ; it is not a mere ministerial duty.

Discretion implies “ knowledge and prudence, that discernment which enables a person to judge critically of what is correct and proper, united with caution ; nice discernment, and judgment directed by circumspection.” Coinciding in opinion with that high tribunal whose authority we 'have just now invoked, that it is not the province of the Court below or of this Court to control the exercise of that judgment and discretion, and that the remedy here sought is inappropriate, we are clearly of opinion that the judgment of the Court below should be reversed, 'The remedy of the party, if the views which this Court have expressed, and the reasons given for them, do not satisfy the Comptroller that he ought to pay this claim, is a memorial to the General Assembly, which has power to afford him relief.

But we entertain the hope that what in right and justice appertains in this behalf, will be done without the necessity of the relator’s resorting to that proceeding. And we take occasion further to remark that as the questions presented in this case had not before been so made as to be authoritatively decided in this State, it was proper that the Judge to whom application was made for the writ in this ease should have-granted it: that they might be brought here to be discussed and settled. The judgment of the Court below is reversed, and the cause remanded with directions to that Court to dismiss the writ.

Per curiam.