State ex rel. Carmichael v. Jones

• Citation: 41 So.2d 280,252 Ala. 479
• Decision Date: 19 May 1949
• Docket Number: 3 Div. 527.
• Parties: STATE ex rel. CARMICHAEL, Attorney General, v. JONES.
• Court: Supreme Court of Alabama

41 So.2d 280

252 Ala. 479

STATE ex rel. CARMICHAEL, Attorney General, v. JONES.

3 Div. 527.

Supreme Court of Alabama

May 19, 1949

Rehearing Denied June 30, 1949. [Copyrighted Material Omitted]

A. A. Carmichael, Atty. Gen., and Silas C. Garrett III, Asst. Atty. Gen., for petitioner.

Hill, Hill, Whiting & Harris and John O. Harris, of Montgomery, amici curiae.

Hill, Hill, Stovall & Carter, of Montgomery, for respondent.

SIMPSON Justice.

Petition for mandamus to require respondent Judge to enter a consent judgment in a cause pending in his court.

The essential question for decision is whether the attorney general of Alabama is authorized and empowered to settle a pending suit by the State filed by him in his official capacity for the collection of an unliquidated tax claim, by taking a consent judgment in the cause for less than the amount sued for and claimed to be due by the tax department.

The claim was made by the department of revenue and placed in his hands for suit, as the law requires, as license taxes due by the terms of § 597, Title 51, Code 1940. The total amount claimed in the suit was $2591.50 and the petition for mandamus, with the agreement of the respective counsel for the consent judgment attached thereto, shows that there was a bona fide dispute as to the law and the facts governing a determination of the amount due; that an agreement had been reached to settle the suit by taking a judgment for $1587.50; that it is to the best interest of the State that said suit be settled in this manner, but that the respondent judge, before whom the suit is pending, has refused to enter said judgment.

The director of the department of revenue appeared in court where the cause was pending and through his own specially designated counsel opposed the rendition of the judgment.

Three propositions are advanced for the respondent as grounds for denying the writ: (1) That the rendition of the judgment would be judicial or would involve a judicial discretion and, being so, mandamus will not lie to require it; (2) lack of authority of the attorney general to make disposition of the pending tax case with out the approval or order of the department of revenue, because of the provisions of § 139, Title 51, Code; and (3) lack of power of the attorney general to settle such a state-held claim by reason of § 100 of the Constitution.

The questions are not so easily resolved as the parties, in their zeal, inveigh for their respective sides in the briefs and arguments. We think, however, that the conclusions here reached find rational support in both reason and authority. The propositions will be discussed in order.

(1)

Remedy--Concededly mandamus will not be awarded to require a lower court to perform a judicial duty or one calling for the exercise of judicial discretion. We have said, 'mandamus will lie for the purpose of setting judgment or discretion in motion, but not to direct the manner of its exercise.' Woodward Iron Co. v. Vines, 217 Ala. 369, 116 So. 514, 515; Henry v. State ex rel. Welch, 200 Ala. 475, 76 So. 417.

But the remedy of mandamus is available to require the performance of a ministerial act as distinguished from one judicial, and the act of entering a consent judgment in a matter lawfully agreed upon between the parties and within the authority of the court is ministerial. The sense in which the act is judicial is the examination of the record to determine the court's authority and where the necessary parties have lawfully agreed as regards subject matter within its jurisdiction, the courts generally will perform the ministerial act of entering the judgment on the agreement. There are a few exceptions but, here, no such situation exists as to bring it within the exceptions if the attorney general could lawfully make the agreement for the consent judgment.

This statement of principle is supported by the authorities as carried in the text of 49 Corpus Juris Secundum, Judgments, § 176, pp. 312-313, where it is stated:

'An order for entry of a consent judgment is a judicial act in the sense that it requires the court to examine the record to determine its authority, but is ministerial in the sense that it is predicated on the agreement of the parties. * * *

'So, where the parties have lawfully agreed, the actual entry of judgment is a mere ministerial act, unless the case is one in which the defendant has the right to be heard as to the nature or terms of the judgment to be entered. * * *'

To the same effect is the following pertinent statement in 35 American Jurisprudence, p. 46, § 285:

'An inferior court may unquestionably be compelled by mandamus to proceed to judgment in a case properly before it, and where its duty in the matter is plain and unmixed with discretionary power, it may be compelled to enter a judgment or decree, as in a case where nothing remains to be done but the clerical work of entering it. So, the writ may issue to require the court to enter judgment * * * which has been agreed upon or stipulated to by the parties. * * *'

The court in the instant case did have jurisdiction of the subject matter and the parties, so if the consent agreement as to the disposition of the cause was lawfull--that is, within the power and authority of the attorney general to make--it was the court's duty to give the agreement effect by entering the judgment thereon.

We proceed then to consider propositions (2) and (3), viz., whether § 139, Title 51, Code 1940, or § 100 of the Constitution proscribed such action.

(2)

§ 139, embraced in the statute creating the department of revenue provides:

'Whenever any matter is pending before any court affecting the revenue laws of the state, and in which the state is an interested party and the interest is very important, the department of revenue may, with the approval of the governor and attorney general, employ special counsel to represent the interest of the state on the trial thereof; provided, that the attorney general certifies to the governor in writing that neither he nor any of his assistants are available for service, and no case pending before a court affecting the revenue laws of the state shall be dismissed by counsel representing the state, whether specially employed counsel or otherwise, except by order of the department of revenue.' (We emphasize.)

It is argued to sustain the refusal to enter the consent judgment that the underscored portion of the above-quoted section, forbidding counsel representing the state in matters affecting the revenue laws from dismissing pending cases, applies to the attorney general as well as the regular or special counsel for the revenue department. The contention must be rejected.

In view of the broad powers vested in the attorney general both by common law and under various statutes, we cannot say with any degree of certainty that that quoted provision of § 139 was intended to apply to him. This provision is part of the statute making provision for the establishment of the department of revenue and must be read in connection with the preceding provisions authorizing the appointment of counsel to represent the department. Section 120 authorizes the appointment of legal counsel for the department of revenue by the commissioner, with the approval of the attorney general, who shall be commissioned as an assistant attorney general. Section 122 gives authority for the commissioner to appoint not more than three assistant counsel for the department of revenue, with the approval of the attorney general, who likewise must be commissioned as assistant attorneys general.

Section 123 inhibits such counsel from appearing in court for the State of Alabama unless directed so to do by the commissioner of revenue and the attorney general. And then the proviso in § 139 as regards the dismissal of pending cases by 'psecially employed counsel or otherwise.' It is our considered opinion, after a careful consideration of these and other related sections of the law establishing the department of revenue, that the underscored provision of said § 139 does not and was not intended to apply to the attorney general, the term 'otherwise' loosely carried in the statute to apply to all counsel for the department of revenue whether special or regular, general or assistants.

In coming to this conclusion we thus rationalize. The attorney general is a constitutional officer, the chief law officer of the state, and on him are conferred various authorities and duties in connection with instituting and prosecuting, in the name of the state, suits and other proceedings at law and in equity for the preservation and protection of the rights and interests of the state (Constitution, §§ 112, 137), and if § 139 were intended to so abridge his general authority over lawsuits instituted by him by subjecting his decisions in such matters to another executive head, not necessarily learned in the law, we think it should have said so by more specific language.

The following provisions in the Code imposing various duties and conferring various powers on the attorney general are persuasive to this view: Code 1940, Title 55, §§ 228, 229 234, 235, 236, 240, 244. We take particular notice of § 244, which in effect provides that all litigation concerning the interest of the state or any department thereof shall be under the direction and control of the attorney general. Taking into consideration the scope of authority and duty imposed on him by these statutes, we do not think they were intended to mark the limits or bounds of his authority, but to indicate certain specific duties and confer certain definite authority in the instances mentioned. Indeed, we intimated as much in McDowell v. State, 243 Ala. 87, 89, 8 So.2d 569, 570, where it was...