State v. Barnes

• Decision Date: 20 March 1889
• Citation: 5 So. 722,25 Fla. 298
• Parties: STATE ex rel. MOODY v. BARNES, Comptroller.
• Court: Florida Supreme Court

5 So. 722

25 Fla. 298

STATE ex rel. MOODY v. BARNES, Comptroller.

Florida Supreme Court

March 20, 1889

Petition for mandamus.

Syllabus by the Court

SYLLABUS

The authority conferred on the comptroller by the constitution of the state, to approve the bonds of county officers, vests him with discretionary judgment, not subject to control by mandamus, unless he abuses his discretion.

While mandamus is a proper remedy where an officer, in the performance of discretionary duty involving a right given by law, bases his refusal of the right on a matter or ground outside of his discretion, it is not available where said matter or ground is within the discretion to be exercised by him.

Courts will not use mandamus to control the discretion of an officer for a wrong decision because of a wrong reason for the decision, unless the reason relates to a matter or question of law not within his discretion.

M. was elected to the office of sheriff, and presented his bond to the comptroller for approval. The comptroller refused his approval because one of the sureties had withdrawn, and the circumstances in reference to the assent of the others to the withdrawal were such that in his opinion there was serious doubt as to the validity of the bond. Held, that the question of the legality of the bond was one directly within his discretion, and his determination in regard to it, even if wrong, cannot be controlled by mandamus.

COUNSEL M. C. Jordan, for relator.

The Attorney General, for respondent.

OPINION

MAXWELL J.

This is an original proceeding in this court. The relator avers by his petition for mandamus that he was elected sheriff of Duval county at the general state election, November 6, 1888 and that, with a view to qualify for the office as required by law, on the succeeding 2d day of January he presented to the county commissioners of said county a bond for their approval, which he alleges had good and sufficient security. When presented, A. C. Toll, one of the sureties, appeared before the board, and gave written notice that he desired to withdraw from the bond, whereupon relator withdrew the bond but afterwards, on January 5th, again presented it to the board for approval, with the assent of his sureties, but the board rejected it. Then with the consent of the board he again withdrew the bond, and entered into an additional bond with, as he alleges, good and sufficient security, which in its terms was made a part of the former bond, the two to be deemed and taken together as his bond. These, with the assent of his sureties, were once more presented on the same day and were accepted and taken together and approved by the board. It then being 12 o'clock, noon, he immediately telegraphed the comptroller that his bond had just been approved by the board, and that as no train would run the great distance from Jacksonville to Tallahassee till next morning, it would be impossible for him to present the bond for approval by the comptroller, but that it would be forwarded by the first train. Thereupon he took the oath of office, and on the following morning sent the bond, his oath of office, and his letter of acceptance, together with the commission fee, to be delivered to the proper authorities in Tallahassee. On the 7th of January his attorney presented these to the state treasurer, in accordance with the instructions previously given by the secretary of state but the treasurer declined to accept the same until the bond had been accepted and approved by the comptroller, whereupon the bond, etc., were presented to the comptroller, when divers persons from the county of Duval appeared and objected to his approval of the same, on the ground that the conduct of Toll as aforesaid operated to discharge the other sureties from the bond, and render it void, which the relator contended was not the effect of said conduct, at the same time representing that all the sureties had full knowledge of Toll's conduct, and had assented to the same, and had authorized the presentation of the bond by the relator as his and their bond. To avoid the suspicion which had been cast on the bond, relator's attorney offered to procure from the sureties a written statement of as high nature as the bond itself, that they had 'full knowledge of the conduct of Toll, and that his said conduct was and is with their assent;' and, the comptroller acceding to his request, to that end two instruments of writing, signed by the relator and his sureties under seal, were procured and subsequently presented, in which they declare and affirm that they are still bound as obligors on the bond, regardless of the conduct of Toll, and said conduct is with their full knowledge and assent. On further consideration of the matter, the comptroller refused his approval of the bond of relator, assigning his reasons as follows: 'It appears that one Albert C. Toll, whose name is signed to the bond as one of the sureties, formally withdrew from it as such surety before it was accepted by the board of county commissioners, and such withdrawal, in my opinion, affects the liability of the other sureties, unless it is shown that at the time of such withdrawal each of them expressly assented thereto. There is nothing on the bond, nor anything that properly belongs to or can be considered with it, that shows such assent on their part. To be a proper bond for approval it must be complete in all the requirements within sixty days after the election of the officer. Any paper writing by the sureties renewing their obligation on the bond and signifying their assent thereto, and knowledge of such withdrawal at a period subsequent to the acceptance of the bond, does not cure the defect. No obligation made nor assent given after the time allowed for completing the bond can be considered, when the time for making it is limited by law. Being satisfied from a careful examination of all the papers and facts submitted, and from the legal advice I have received, that at the expiration of the sixty days limited by the constitution for county officers to give bond and qualify the instrument under consideration was such as to raise serious doubt as to whether a recovery could be had upon it in the avent of a suit, I fell compelled to hold that it is not such a 'legal, sufficient, and proper' bond as to justify my approval.'

The relator avers that the bond was a 'good, sufficient, legal, and proper bond,' and that the comptroller had decided that it was filed with him within the time limited by law for the qualification of relator for said office. The return of the comptroller is that the facts recited do not entitle the relator to a mandamus against him, and, excluding the sufficiency of the bonds, he admits all the facts except the allegations that he had decided that the bond was filed with him within the time limited by law for the qualification of relator as sheriff of Duval county. To the return the relator demurred, partly as to matter of form,--which it is not necessary to consider,--but mainly because it does not show sufficient legal cause for refusing obedience to the alternative writ.

The matter to be determined is whether, under the facts of the case, mandamus will properly lie. The constitution provides that a sheriff shall be elected in each county of the state, and in section 7, art. 8, that 'all county officers * * * shall, before entering upon the duties of their respective offices, be commissioned by the governor; but no such commission shall issue to any such officer until he shall have filed with the secretary of state a good and sufficient bond in such sum and upon such conditions as the legislature shall by law prescribe, approved by the county commissioners of the county in which such officer resides, and by the comptroller. * * * If any person elected or appointed to any county office shall fail to give bond and qualify within sixty days after his election, the said office shall become vacant.' The legislative enactment as to those offices directs that the bond shall have not less than two sureties, and shall be given to the governor and his successors in office, and as to sheriff, 'that the sheriff of each county shall give bond in a sum to be fixed by the board of county commissioners of his county, which shall not be less than $2,000, nor more than $10,000.' Acts 1887, c. 3724, § 4. No objection is made to the bond for defect in any of these requisites, except such as appear in the reasons given by the comptroller for refusing to approve it.

Whether we can review those reasons and put the comptroller to further action if we find them insufficient is the first question to be considered. The approval of a bond by the comptroller necessarily involves the exercise of judgment and discretion. It is not a ministerial duty of such sort that he can perform it by simply receiving the bond and indorsing his approval thereon. He must decide whether it is in form, whether the penalty and condition are such as the law requires, and whether the sureties are sufficient, and if there is a question as to its legality he must decide that. The constitution does not express what is included in 'approved * * * by the comptroller,' but the legislature in its act above cited amplifies, though really meaning no more. In section 10 of the act is this: 'Every such bond shall be approved by the board of county commissioners and by the comptroller, when they and he are satisfied in their judgment that the same is legal,...