Dew v. Judges of the Sweet Springs District Court

• Decision Date: 18 October 1808
• Citation: 13 Va. 1
• Parties: Dew v. The Judges of the Sweet Springs District Court
• Court: Virginia Supreme Court

13 Va. 1

Dew v. The Judges of the Sweet Springs District Court

Supreme Court of Virginia

October 18, 1808

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Samuel Dew, the appellant, on the 12th day of June, 1805, obtained from the General Court a rule upon the Judges of the Sweet Springs District Court, to shew cause why a mandamus should not issue, directing them to admit him to the office of Clerk of the said District Court; to which rule a return was made, " that, at a Court held for the said District, on the 18th day of May, 1805, Samuel Dew produced in Court a commission, signed by a majority of the Judges of the General Court, appointing him Clerk of that District Court, in the room of Samuel Dew, senior, deceased; also a certificate from the Clerk of Botetourt Court, of his having taken the oaths prescribed by law; but, not offering sufficient security for the faithful performance of the duties of the said office, the Court proceeded to appoint Erasmus Stribling to fill the said office, who, having taken the oaths, as the law directs, together with James Breckenridge and others, his securities, entered into bonds, & c. with such condition as the law requires: --and, at a District Court, continued and held as aforesaid, on the 22d day of May, 1805, Samuel Dew this day appeared in Court, and offered sufficient security for the performance of the duties of the office of Clerk of the said Court, of which the Court took time to consider: --and, at a Court continued and held as aforesaid, the next day, the said Samuel Dew was refused to be admitted to the said office of Clerk, because, on the first day of the term, when called upon to execute a bond, he offered insufficient security, although the greater part of that day was allowed him to provide security, and, previous to the appointment of Erasmus Stribling, said Dew acknowledged he was unable to find farther security on that day, but then alleged that, at a future day of the term, it was probable he would be able to obtain sufficient security.

" The commission, and certificate from the Court of Botetourt County, within referred to, are in the following words, to wit, 'These are to certify that Samuel Dew is appointed the Clerk of the District Court, to be holden at the Sweet Springs, in the County of Monroe, in the room of Samuel Dew, senior, deceased. Given under our hands and seals this 23d day of January, in the year of our Lord one thousand eight hundred and five.

" Richd. Parker,

(Seal.)

" Jos. Prentis,

(Seal.)

" Wm. Nelson, jun.

(Seal.)

" Francis T. Brooke,

(Seal.)

" Jno. Tyler,

(Seal.)

" Jos. Jones,

(Seal.)

" 'At a Court holden for the County of Botetcurt, on Thursday, the 12th day of February, 1805, Samuel Dew, gentleman, produced in Court an appointment signed by six of the Judges of the General Court, appointing him Clerk of the District Court holden at the Sweet Springs, whereupon the said Samuel Dew took the oath of fidelity, the oath to support the Constitution of the United States, and the oath of said office.

" 'Teste. H. Bowyer, C. B. C.

" 'A Copy, Teste.

" 'Erasmus Stribling, C. S.D. C.'

" We consider it was the duty of the Judges to hold a Court on the first day of the term, and find that the civil and criminal business of the country required it; that Samuel Dew, who was commissioned in the month of January preceding, had sufficient time to have procured security, without which he well knew he could not act; that, circumstanced as the Judges were, they could not proceed to elect a Clerk pro tempore, and they would not have been justified in respecting the declaration of the said Samuel Dew, that it was probable he could get security at a future day, considering his failure for several months, and the first day of the Court, when and where a large number of the people of the District were present. We consider, therefore, that the Judges of that Court acted correctly and properly in the appointment of Erasmus Stribling, who fully answers their expectations and those of the public. Signed by the Judges present, and attested by Erasmus Stribling, C. S.D. C."

At the ensuing term of the General Court, the rule entered at the last term was continued till the next Court; and, by consent, as well of the said Samuel Dew, as of Erasmus Stribling, commissions to take depositions were awarded them: and afterwards, on the 15th of November, 1806, the Court, having read the evidence and maturely considered the return on said rule, ordered, that " unless the defendants shew cause at the next term why the plaintiff shall not be admitted to the office of Clerk of the said District Court, a mandamus will be then awarded, to the Judges of the said Court to be directed, commanding them to admit the said Dew to the office aforesaid. The right of appeal is nevertheless reserved, in case the mandamus aforesaid shall be awarded." To this order another return was made, substantially corresponding with the former; and on the 13th day of November, 1807, " at a General Court continued and held, & c. came the parties by their attornies, who being fully heard, and the returns, on the said rule, by the Court maturely considered, it was ordered that the said rule be discharged; " from which order Dew appealed to this Court.

The depositions filed and read in the cause were very numerous, but need not here be detailed, as the whole, taken collectively, did not materially vary the merits of the case. It is proper, however, to mention that the real property of those persons who were offered by Dew as his securities, on the first day of the District Court, was not counted as any part of the sum which the law required; or, at least, the Court made inquiry as to their personal property only: but it does not certainly appear from the depositions, that the persons offered were sufficient security, even if their real as well as personal property had been taken into computation.

As this case concerned the public administration of justice, and a speedy decision was, therefore, considered necessary, it was taken up, out of its turn on the docket, upon a petition from the appellant. ^[a]

Wickham, for the appellant, contended, that Dew had a right to give security at any time during the first session of the District Court after his appointment. The language of the law ^[a] is, not on the first day of the first session, but at the first session, which necessarily gives the whole of the session for the purpose. Having received his commission and taken the oaths, Dew was qualified to perform the duties of his office, and was Clerk de facto, though it was incumbent upon him to give security before the final adjournment of the Court. If he failed to do so, the only remedy against him was by an information in the General Court, for holding the office without complying with the law requiring him to give security.

Sound reason supports this construction: for sickness, or other inevitable accidents might prevent the Clerk, appointed in the vacation, from attending on the first day; he might be disappointed by the persons who had promised to be his securities; or, he might think securities good whom the Court might adjudge insufficient. In any of these events, surely some time ought to be allowed him.

No argument to the contrary can be drawn from the inconvenience of granting this indulgence; since the Clerk could legally execute the duties of his office before he gave the bond; and, when given, it would cover all his previous transactions: if not, the law has not provided for the case.

The provision concerning County Court Clerks, ^[b] that they must give bond " at the time of appointment and qualification," furnishes an argument to ascertain the true construction of the law now in question. When the Legislature uses different language on similar subjects, its intentions must be inferred to be different: but, where the words used are the same, the same construction ought to prevail. In the clause relative to setting aside office-judgments, ^[c] the words " at the succeeding Court," have always been understood, at any time during the succeeding Court. Between that case and this, there is no difference in principle.

But, if security was not given, it was the fault of the Court, which improperly confined its inquiries to the personal property of the persons offered; notwithstanding the greater certainty and permanency of landed estates. This might have prevented Dew from offering men whose real property was abundantly adequate; for no inference can be drawn from the record but that, if the Court had decided correctly as to that point, security might have been given on the first day.

Dew ought, therefore, to be restored to his office; and the proper remedy is by writ of mandamus, as in the case of Smith v. Dyer, 1 Call, 562. British authorities do not bear on this subject. In England the remedy by Assise is obsolete, and that by information in the nature of quo warranto substituted. ^[a] But this is by virtue of the stat. 9 Ann. c. 20, ^[b] which is not in force in this country. The writ of mandamus is the mode of proceeding in this country, and the only remedy by which a person, illegally ousted of an office, can be put into possession; in which respect, it is analogous to the action of detinue, or to a bill in Chancery for specific performance. To deprive us of the mandamus, the counsel on the other side must shew that we have some other specific remedy.

Chapman Johnson, for the...