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ceiving officer, and especially of his sureties, by virtue of his bond, have evidently overlooked what we conceive to be a very important and vital distinction between an absolute agreement to do a thing and a condition to do the same thing, inserted in a bond. In the latter case, the obligor, in order to avoid the forfeiture of his obligation, is not bound at all events to perform the condition, but is excused from its performance when prevented by the law or by an overruling necessity. And this distinction, we think, affords a solution to the question involved in this case.

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Of course the above rule does not apply to a money bond given for a debt, where the condition is simply for the payment of a less sum of money than the penalty; for there, as the books say, the condition is of the same nature as the obligation itself, and not collateral to it. The bond in suit is not such a money bond. The condition of an official bond is collateral to the obligation or penalty; it is not based on a prior debt, nor is it evidence of a debt; and the duty secured thereby does not become a debt until default be made on the part of the principal. Until then, as we have seen, he is a bailee, though a bailee resting under special obligations. The condition of his bond is, not to pay a debt, but to perform a duty about and respecting certain specified property which is not his, and which he cannot use for his own purposes.

In the case of Farrar and Brown v. United States, 5 Peters 373, the question being whether sureties were liable for defaults made prior to the giving of the bond, the court say: “for any sums paid to Rector (the principal) prior to the execution of the bond, there is but one ground on which the sureties could be held answerable to the United States, and that is the assumption that he still held the money in bank or otherwise. If still in his hands, he was up to that time bailee of the government; but on the contrary hypothesis he had become a debtor or defaulter to the government, and his office was already consummated." That is, as custodian of the money he is bailee of the government—not a debtor. What makes him a debtor or defaulter is the very question at issue. When he becomes such, then he and his sureties are liable until the amount is paid, as we held in the late case of Bevans, before referred to. Until then, neither he nor they are liable on the bond.

We think that the case is within the law as laid down by Lord Coke, and that the receiver, and especially his sureties, are entitled to the benefit of it; and that no rule of public policy requires an officer to account for moneys which have been destroyed by an overruling necessity, or taken from him by a public enemy, without any fault or neglect on his part.

Judgment affirmed.

Justices SWAYNE, MILLER and STRONG dissented.

In some of the states the liability of an officer under bond is that of an ordinary bailee for hire. Where this rule is adopted he is liable only for negligence, even where the funds in his charge are stolen. Cumberland v. Pennell, 69 Me. 357; State v. Copeland, 96 Tenn. 296.

CHAPTER X.

THE MANDAMUS.

I. CHARACTER OF DUTY WHOSE PERFORMANCE WILL BE

ENFORCED.

STATE EX REL. V. WHITESIDES.

Supreme Court of South Carolina. April, 1889.

30 S. C. 579.

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There is no serious dispute as to the main facts of the case, and these are sufficiently stated above. The difficulty, however, grows out of the legal questions raised, and these involve primarily a discussion of the law of mandamus, and its application to these conceded facts; and, secondly, the constitutionality of the recent act of the legislature, known as “An act to provide for the payment of township bonds, issued in aid of railroads in this State. Approved December 22, 1888." 20 Stat. 12. These questions will be considered in their order.

The principles which govern in mandamus cases, especially where the proceeding is against a public officer, are very plain and simple, and are within a very narrow compass; so much so as to need no elaboration here nor the citation of authorities. They may be briefly stated thus: Where a party has a legal right, to the enjoyment of which the discharge of a ministerial duty on the part of a public officer is necessary, and he has no other adequate remedy, in case the officer refuses to discharge this duty, mandamus is the proper proceeding. High Ex. Leg. Rem., section 34 et seq. This

. writ was once a prerogative writ, and in England was supposed to issue at the instance of the crown, to meet and remedy otherwise remediless cases at his discretion. But in this country it has lost its prerogative character, and though issued in the name of the State, yet it belongs to the courts, and has become a form of action, governed by established rules and applied for and issued under established forms. Upon application for this writ against a public officer, the questions to be considered are: 1st. Is the duty claimed a ministerial duty? 2d. Has the petitioner a legal right, for the enjoyment, protection, or redress of which the discharge of said duty is necessary! 3d. Has he no other adequate and sufficient remedy? High, section 10. And these are the questions before us.

The petitioners ask that the chairman of the county commissioners of York county shall be required to endorse the certificate of the engineer,

and that the clerk of the board shall attest his signature. Can the performance of these acts be ordered as ministerial duties? What is a ministerial duty on the part of a public officer? We think it may be defined briefly, yet fully, to be some duty imposed expressly by law, not by contract (High, section 25); or arising necessarily as an incident to the office, involving no discretion in its exercise, but mandatory and imperative. High, section 42. Now, is the duty claimed here by the petitioners at the hands of the respondents a duty of that character. There is certainly no act or law of force expressly imposing this duty upon them. Nor is it a duty necessarily arising as an incident to the offices which they hold. Nor was it contracted in furtherance of any legal duty attempted by them, and which cannot now be completed without the performance of this.

This being so, we do not see how any ministerial duty, in the sense as defined above, could attach.

It is said, however, that the recent act, supra, has validated these bonds, and has legalized all the proceedings under which they were executed, and the conditions upon which they were to be delivered to the railroad, including the contract to have the certificate of the engineer endorsed by the chairman and attested by the clerk. We think this is a mistake. We do not understand that the act of 1888, supra, has had that effect; nor was such its intention, in so far as the proceedings of the different townships were concerned.

We think the act in question is constitutional and valid.

But conceding this, we do not see how it warrants the mandamus prayed for. There is certainly nothing in this act expressly commanding the respondents to perform the stipulations of the contract upon which this proceeding is based, nor is there any duty imposed thereby upon the respondents to which the suggested acts are necessarily incidents, and therefore there is no ministerial duty in this regard attaching to them to be enforced by the writ prayed for.

The petition must therefore be dismissed, and it is so adjudged and decreed.

Mandamus may not be used to enforce the performance of a contract. State v. Turnpike Co., 16 Ohio St. 308.

II. MINISTERIAL AND DISCRETIONARY DUTY.

STATE EX REL. BRICKMAN V. WILSON.

Supreme Court of Alabama. November, 1898.

123 Ala. 259.

MCCLELLAN, C. J. This is a petition by the State on the relation of Brickman for mandamus to issue to Massey Wilson, as Clerk of the House of Representatives, and to R. P. McDavid as Secretary of State.

That the relator has such interest in having the integrity of the journal conserved in the manner prayed as authorizes him to exhibit this petition, and will entitle him to the relief he seeks if the duty of expurgation is upon the Secretary of State, we do not doubt. His attitude bears a striking similitude to that of relators who seek to coerce by mandamus the issuance to them of licenses to carry on certain occupations and businesses; and it is well settled in this court and generally that where the duty of issuing such licenses is ministerial, mandamus is the appropriate, indeed the only, remedy for its enforcement. This relator's interest in the premises is to carry on a business for which a license has all along been required upon the license which the law requires and which has been issued to him, without being subjected to additional license taxation in consequence of the failure of the Secretary of State to perform an alleged ministerial duty: he asks that that officer be ordered to per. form that duty, to the end that he may carry on the business in which he is now engaged; and his interest and right is the same as if the duty upon that officer was to issue him a license, instead of being in effect to authorize him to continue to carry on the business without taking out or paying for an additional license.

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