Huntsville gazette., 1892-07-23
Honorable Henry G. Speake, Circuit
Judge, presiding.

erS Is conferred upon Judges OF the circuit
court to grant writs of mandamus Code
section 725, mandamus is the remedy
against public officers for the perfore
nance of some duties that is ministerial
and not judicial in its character. A ne.
ceslty may exist for the ascertainment
from personal knowledge or by infor
nation derived from other sources for
the state OF facts on which the performs
ance Of the act becomes a clear and spe.
cific duty, does not operate TO convert 1T
into an act judicial IN its nature. Such
is not the Judgment or discretion which
is an essential element OF judicial action.
IT Alabama-426
The defendants were bound in law
(Section 352 Of the Code) to appoint in-
spectors. The only thing required OF
them by that section being to ascertain
and find out for each precinct that there
were members of opposing political par
ties residing in said precinct, and If
practicable, appoint them. The ques-
ton as to whether maIdamus will lie in
cases oi this character | think hes been
settled by our Supreme Court in the
case of Dudley ct ais, VS.. Caffee. In
that case the petition was filed, demur-
rers thereto filed and sustained by the
Circuit Judge, appealed TO Supreme
Court, Judgment of the Circuit Judge
reversed, demurrers overruled and the
Supreme Court awarded the rule nisi or
alternative writ which was in effect
putting the defendant, Cafee, to issue
of fact upon the petition. | therefore
hold that l, as Judge of the circuit court
have Jurisdiction to try this case, and that
averments in this petition, original and
amended, calls to exercise that Jurlsdlc'
ton.
The appointment of the Inspectors is
la duty that the officers whose duties 1t
is to make said appointments. owe to
the pupblic. The case Of Dudley ct ais.
VS.. Cafee, and the case of King, Lane, ,et
ais, neither were filed in the name OF
this State. The duty of the officers beA
ing one they owe the public The current
of authorities think hold that any citi-
zen may have relief by a mandamus
without disclosing any real interest in
himself. (See High on extraordinary
remedies-Sec. 430, ct see quita and
notes American Encyclopedia, page 2lo
and notes) The parties defendant in all
civil proceeding, should be those against
whom relief is prayed, and upon whom
the performances OF DUTY devolves.
The duty in this case devolves upon de-
PENDANTS alone; the inspectors appointed
cannot be interested IN it unless such
appointment makes them officers and
invests them with some right, which
cannot be taken from them. To invest
inspectors with such rights he must
be appointed by the proper authority
and in legal way, and have accepted
the position. He is not such an officer
as the constitution provides for, takes nc
oath to support the constitution of the
United States or State; his only oath
being to perform his dutias as inspec
tors at such election to the best OF his
Judgment; he is no such officer nor has
he such rights az would make him q
necessary party to this proceeding.
Petitioner alleges that he was noml~
mated at convention held in Mont
gomery for Governor; that there is 9
full ticket for State officers in the field
nominated at the same convention and
by the same delegates as himself, except
Supreme judges of the State. He fur
ther alleges that there is full ticket in
Madison county, supporting him and
nominees; that there are men competent
and willing to fill the position of inspec.
tors at each beat in said county, who
belong to his party and are supporters
of his ticket, and prays for the appoint
ment of one of each as an inspector al
each precinct in said county. The duty
of the officers to appoint inspectors be-
ing for the benefit of the public and a
matter ip which the public were inter
ested, | think petitioner has the right
to ask that such inspectors be appointed
not to represent him personally, but
the party to which he belongs, and the
ticket which supports said party. Il
being as before stated, not necessary
it should be filed in the name Of the
Estate. Italy VS.. Grider, &c Alabama
Lane ct ais vs.. Caffee, King VS.. Lane et
ais The duty of the defendants being
for the benefit of the public, the mex
Iquestion is then, was any demand nee
essary ard refused upon the part OF the
defendants, was such demand necessary
in order that mandams should lie
l(High on extraordinary remedies Sec.4l
LAYS down this rule:) "Where the du.
ties are of strictly public nature in.
cumbent upon public officers by virtue o.
their office, and which they are sworr
to perform, no demand and refusal are
necessary as a condition precedent to
relief by mandamus. In such cases nc
individual interest being affected, there
is 10 one specially empowered to de
mand performance of duty, and no ne
cessity for literal demand and refusal
The law itself stands in place of de-
mand and the neglect or omission tC
perform the duty stands in the place o
a refusal, or in other words, the duty
makes the demand, and the omission il
the refusal. (See also the 14th Ameri
can Encyclopedia. page 1867 1t is als(
held that demand and refusal is not nee
essary when the respondents have done
!. the act which they call a performance
but which the law says it is not such
ibid note ~ But even if the demand
and refusal were necessary, does not th'
petition show such demand and refusal
Petitioner alleges that Hugh P. Bone
Il who max es affidavit to said petition ,ant
who was one OF the members of the ex-
ecutive committee for his party Tor th'
State, presented to Murphy, Sheriff, ,wn,
by law, is one of the officers required t.
appoint inspects, list of names sup
porting his party and ticket TO be ap
pointed inspeOors, which was handed
rasnondants. that these parties were