Hannan v. Grizzard

• Decision Date: 05 March 1888
• Citation: 6 S.E. 93,99 N.C. 161
• Parties: HANNAN v. GRIZZARD et al.
• Court: North Carolina Supreme Court

6 S.E. 93

99 N.C. 161

HANNAN v. GRIZZARD et al.

Supreme Court of North Carolina

March 5, 1888

Petition to rehear.

This was a petition by John H. Hannan to rehear the case of Hannan v. Grizzard, 2 S.E. Rep. 600, for error in law, in that the court held (1) that the defendants in said cause, acting as the board of commissioners for Halifax county, had jurisdiction to inquire into and pass upon the eligibility (on account of citizenship) of the petitioner to hold the office of register of deeds for said county, upon his presenting himself, with his certificate of election tendering the bond required by law, and demanding to be qualified; (2) that the defendants in refusing to administer to him the oath of office, and appointing another to fill the office, did not exceed their authority, and were not responsible in damages for the loss of fees sustained by the petitioner; (3) that the county commissioners are not merely ministerial officers in administering oaths of office, but that they have judicial functions to determine by trial whether the applicant is or is not a resident, and to declare the office vacant if in their opinion the applicant is ineligible. In support of his petition, and in accordance with the rules of the supreme court of North Carolina adopted January term, 1879, (80 N.C. 488,) he filed the following certificate, viz.:

"IN SUPREME COURT--SEPTEMBER TERM, 1887.

"STATE OF NORTH CAROLINA, HALIFAX COUNTY--SUPERIOR COURT, MAY TERM 1886.

"John H. Hannan, Plaintiff, against James M. Grizzard and others Defendants.

"Having been requested by the counsel of plaintiff in the above-entitled action, to examine the case, and if in my opinion there is error in the judgment of the supreme court to give them a certificate to that effect, with a view to an application for a rehearing, I hereby certify that I do not, and never did, appear in the cause, and have not, and never had, any interest in the same, and that I have carefully examined the case and the law relating thereto, and the authorities cited in the opinion of the supreme court therein, and that in my opinion the judgment of the supreme court is erroneous in the respects following, to-wit: (1) If the court holds, as I infer it does, that the law confers upon the board of commissioners the authority, and makes it their duty, absolute or discretionary, to inquire into and determine the question of the eligibility of a person who has been elected, and has received a certificate of election, I think it is error; because, if the law confers such authority, or imposes such duty, it must be either by express words, or necessary implication. It does not by express words, (Code, § 707, subsec. 28, §§ 3647, 3648;) and not being necessary to enable the board of commissioners properly to execute the authority, and perform the duty, expressly conferred and imposed, such necessary implication is excluded. (2) The courts hold, as I understand it, that even though the law did not confer any such authority, or impose any such duty, upon the board of commissioners, yet if, in point of fact, the person elected was ineligible, and the board of commissioners assumed jurisdiction to try and determine the question, and found in accordance with the fact that the person was ineligible, and refused to qualify him for that cause, he could maintain no action against them. In this I think the court is right. Because, conceding that the person was in point of fact ineligible, he had no right or title to the office, and therefore could not be injured by the action of the commissioners, it being a case of damnum absque injuria, in which an action does not lie. But when (assuming that the person elected was eligible in fact, and that the commissioners, taking upon themselves jurisdiction to pass upon the question, decided it contrary to the fact, and refused to qualify him) the court holds that there would be no difference between this case and the other, I think there is error, because in this case there would be both damnum et injuria, or, in other words, injuria cum damno. (3) The court says that if the plaintiff had brought an action, and failed to recover the office, he would have no cause of action against the commissioners. That is true, because the court finding as a fact that he was not eligible, and had no right to the office, it would be a case ofdamnun absque injuria. But suppose the commissioners had decided that he was ineligible, and refused to qualify him, and he had brought an action formandamus to compel them to qualify him, and the court in that action found that the commissioners were mistaken, and that he was eligible, the court would give judgment in his favor, and, as I take it, would mulct the commissioners with costs of the action, I care not with what bona fides and freedom from malice they acted. (4) The court says that the plaintiff's action would lie if the action of the defendants had been prompted by malice, and as a means to accomplish an unlawful end; thereby implying that malice on the part of the defendant would be necessary to give the plaintiff a cause of action. In this I think there is error. In my opinion the matter of malice in such a case would go, not to the plaintiff's right of action or right to damages, but to the question of the quantum of damages the plaintiff would be entitled to,--the rule of law in general (to which this case is no exception) being, according to my understanding, that injury, in a legal sense, with damages, constitutes a cause of action, and that malice is matter of aggravation. The foregoing opinion is given with much diffidence, and with the greatest respect for the superior learning and judgment of the supreme court; but, being the opinion I have formed with the lights before me, I deem it a duty of professional courtesy to certify it to the plaintiff's counsel for the purpose for which they have asked it.

"M. V. LANIER."

Mr. William W. Clark united with Mr. Lanier in the foregoing certificate.

J. M. Mullen and W. H. Day, for petitioner.

It is made the duty of the register of deeds elect to appear before the board of county commissioners on the first Monday of December next after his election, give bond with sufficient sureties, and take the oath of office. Code, §§ 3647, 3648. This inducts him, and without induction he is not entitled to the fees and emoluments attached to the office. Wiley v Worth, Phil. (N. C.) 171. It is the duty of this board to consider the bond tendered, and, if deemed by them sufficient, to administer the oath, i. e., qualify and induct him. Code, §§ 704, 3648. This duty, the bond being sufficient, is ministerial. Officers before whom oaths and affidavits may be taken are bound to do so when requested. People v. Brooks, 1 Denio, 457; People v. Fletcher, 2 Scam. 482; Gulick v. New, 14 Ind. 93; State v. Lewis, 10 Ohio St. 128. It had no discretion in the matter. Wiseman v. Lynn, 39 Ind. 250; Green v. Beeson, 31 Ind. 7. To "qualify and induct" is but to administer the oath of office when the bond has been given. A justice of the peace can "qualify and induct" the chief justice of this court. The law does not contemplate that the applicant must satisfy the officer to whom he applies of his eligibility other than by exhibiting his commission, or certificate of election. It follows, therefore, that the failure of the defendants to qualify the plaintiff was a refusal to perform a certain and specific duty. Any officer who omits to discharge such a duty prescribed by statute is liable to the party injured by his neglect or refusal. Good faith will not excuse. Plummer v. Harbut, 5 Clarke, (Iowa,) 308; Keith v. Howard, 24 Pick. 292; Tracy v. Swartwout, 10 Pet. 95; Amy v. Supervisors, 11 Wall. 136. "The rule is well settled," says Mr. Justice SWAYNE, in Amy v. Supervisors, "that when the law requires, absolutely, a ministerial act to be done by a public officer, and he neglects or refuses to do such act, he may be compelled to respond in damages to the extent of the injury arising from his conduct. There is an unbroken current of authorities to this effect. A mistake as to his duty and honest intentions will not excuse the offender." Good faith only exonerates from exemplary damages. Clark v. Miller, 46 Barb. 38; 2 Sedg. Dam. 506. But the defendants, in refusing to qualify the plaintiff, not only failed to discharge a plain duty, but in assuming judicial functions to inquire into his eligibility against his protest and prima facie right committed an unwarranted act. County commissioners have no powers except those given by statute, and those necessarily implied. Code, § 702. They are nowhere given authority to declare a vacancy in any office except for failure to take the oath of office, and give those assurances required by law for the faithful discharge of the duties of his office. It may be conceded that in some cases county commissioners act judicially; but, when a ministerial duty is annexed to a judicial office, if the officer executes that duty wrongfully, he is liable in damages. Taylor v. Doremus, 16 N. J. Law, 473; Wilson v. Mayor, 1 Denio, 595; Stone v. Augusta, 46 Me. 127. But there is a limit to judicial immunity. A judge who steps beyond the limits of his powers ceases to be a judge, and will be liable in trespass for any act which transcends his jurisdiction, although done in good faith and without malice. Crepps v. Durden, 1 Smith, Lead. Cas. 1078; 5 Wait, Act. & Def. 35; Jones v. Jones, 3 Dev. 360. The law compels inferior judicial officers to keep within their jurisdiction at their peril. Cooley, Torts, 420. One has property in the emoluments of his office, of which he cannot be deprived but by due process of law, and in all controversies at law respecting property the citizen has...