Merlette v. State

• Decision Date: 12 January 1894
• Citation: 100 Ala. 42,14 So. 562
• Parties: MERLETTE v. STATE.
• Court: Alabama Supreme Court

14 So. 562

100 Ala. 42

MERLETTE v. STATE.

Supreme Court of Alabama

January 12, 1894

Appeal from city court of Montgomery; Thomas M. Arrington, Judge.

Ben Merlette was convicted of perjury, and appeals. Reversed.

John Gindrat Winter, for appellant.

Wm. L Martin, Atty. Gen., for the State.

STONE C.J.

The defendant was indicted and convicted of perjury, and the record presents for our consideration the legality of the oath adminstered to the witness, under which he is charged to have committed perjury. The perjury is charged to have been committed before one Charles Faber, a commissioner appointed for the purpose, in giving his testimony for complainant in a certain suit in equity, in which Wesley Wilson was complainant, and Emma Wilson was defendant. The commission was in due form, and was issued in the name of V. M. Elmore, who was the register of said court. It was objected, however, and proved, that, when the commission was issued, the said register was not in the office; that it was neither issued nor signed by him; but that it was issued and signed in his name by another, who was an employe and assistant in his office. It is contended that the issue of the commission was without authority and illegal, and that, as a consequence, the said commissioner so appointed could not administer a lawful and binding oath, and that perjury cannot be predicated of any falsehood the witness may have uttered while giving his deposition. Whether the oath, so administered by Faber, was legal and binding, is the question in this case.

Our statutes make no provision for the appointment or qualification of a deputy register of the chancery court. Code 1886, § 732. The register's duties are prescribed some of which are judicial and some ministerial. Section 736. Subdivision 5 pertains to the taking of testimony by deposition, and the register's duties therein. See, also rule 60 of "Chancery Practice," (Code 1886, p 821.) It will be seen that a party desiring to take the deposition of a witness files with the register his interrogatories to be propounded, "giving the names of the commissioner or commissioners." These are then served on the opposite party, or his counsel. Such opposite party may file objections to the commissioner or commissioners named, and, if he does so, the register passes on them, and allows them, or disallows them. If he disallows them, or if none be interposed, it is then his duty to issue the commission to the person or persons named. This is a duty which the law itself has prescribed, and the register is left without discretion in the premises. Is such act judicial or ministerial? No objection to the commissioner proposed was filed in this case. Defining the line of distinction between judicial and ministerial functions, it was said by this court, in Grider v. Tally, 77 Ala. 422: "Judicial power is authority, vested in some court, officer, or person, to hear and determine when the rights of persons or property, or the propriety of doing an act, are the subject-matter of adjudication. Official action, the result of judgment or discretion, is a judicial act. The duty is ministerial when the law exacting its discharge prescribes and defines the time, mode, and occasion of its performance with such certainty that nothing remains for judgment or discretion. Official action-the result of performing a certain and specific duty, arising from fixed and designated facts-is a ministerial act;" citing authorities. Throop, Pub. Off. §§ 535, 538, 539; Flournoy v. City of Jeffersonville, 17 Ind. 169; 14 Am. & Eng. Enc. Law, 100, in note. Another test for determining whether any given official power or duty is ministerial or judicial is brought into requisition by the inquiry, would its specific exercise be enforced by mandamus? If the power invoked be ministerial, and if the official act be the doing of a specific thing, then mandamus will lie to compel the act to be done as prayed for. If the power be judicial, then mandamus will lie to compel action, but not to control or direct the shape such action shall take. The one is determinative in its purpose and effect, while the other simply puts the machinery of the law in motion, without commanding or directing what judgment shall be rendered. 14 Am. & Eng. Enc. Law, 99, 108, 109; 3 Brick. Di...