Birmingham state herald., 1897-05-20
or whether separate suits would have

or whether separate suits would nave to be brought?'
 Tn answer to this question, it must be observed that il would be entirely inn practicable, in case of default, to sue all of the obligors on these several bonds in one action. The several bonds are separate undertakings, varying widely in their several penalties. A bill in chan cery might be so framed as to array and marshal them all in one original bill, but it would not be right for the state offi- cials to deliberately adopt course which might result in the necessity to resora to such unusual and tedious process.
 The seventh question is as follows: "Whe,ther a vacancy now exists in the office of tax collector of Mobile county, and if so whether ii is necssary that th.s vacancy should be certified to the gov ernor by the probate judge of Mobile county before it would be his duty to lake action in the premises?'
 In rsply to the frs! portion of this ques- ton I should say that the office of tax collector of Mobile county has in the since -he morning of December 2S, 1896. The additional bond required by law should have been made within the ten days from the day named in the requisl- tion which followed as a consequence from the grand jury's report, Tha pro- bate judge, as heretofore stated, was en- tirely without. authority to either extend or diminish that period fixed by the sLa;- ute, and his action in ths' premises was contrary to law. He not only failed to follow the law, bus failed to perform a plain duty which the law enjoins upon him, viz: to lat once certify the same to the appointing power''
 However, since that time the tax col lee or has remained a defaetO officer, with defeaslble title, and as such he con'tirues to hold until busted in due form of law. All of his official acts since the day when the probale judge would have certified the vacancy have been are now valid as to the public and all third per sons. Clark Vs. Ennis, 45 N. J. L. 69.
 Upon the other poinl- as to Whe,hr or not you should proceed to make an ap- pontment, notwithstanding the absence of -he proper certificate from the probate judge. I am inclined to say that you should not. All things ought to move in the order and course esta blished by law. This holding does not excuse the judge from his dereiction. It is obvious the executive cannot be pres mt in every county in the st1l.e, to ascertain the facts from which vacancies may be inferred. In our opinion, the statute was intended to provide convtnien. mode of fur nishing the necessary information. There are many reasons which go to show that this Stntu:e was never intended to con- fer judicial powers. The sole object is to advise the appointing power of the ex- fstelnce of a fact, which the law declares to create the vacancy; which fact migh- otherwise remain unknown, and the office continue vacant to the manifest injury of the people.
 The statute contemplate immediate ac- tion after the lapse of the ten days which indeed is essentially necessary for the public Welfale.
 The presumption of law is that public officials will perform their duty and is- sue to you the certificate which supplies you in turn with the Jurisdiction fact of which n aDt of new incumbent will stand planted.
 The eighth question is: Whether un- der all the facts shown in the papers herewith submitted it is my duty to take any, and what action in the premSes?"
 I should say in reply to this that there arc two distinct proceedings which you might cause to be instituted without inn propriety.
 Q) To compel the probate judge of Mo- bile county to issue and address to you the certificate contemplated by section 2S2 of the code, which should have issue on the 18th day of December, 1896.
 (2) To set aside the order of said judge of the 10th of April, 1897, approving the four separate bonds which are regarded as irregular in form and substance.
 Yours very truly,
 (Signed) WILLIAM c. FITS,
 Attorney General.
 Today the governor addressed the fol- lowing official communication to the att torney general:
 Montgomery, Ala, May IS, 1897. Hon Wm. c. Fitts, Attorney General.
 Sir-Referrng to your official opinion of May G. inst, that vacancy has ex- isted in the office of tax collector of Mo bile county since Dec. 2S and that the present bond of that officer is not such bond as the law contemplates and re- quires, I hereby direct that you take such steps as in your judgment will enforce the law in the case and protect the in- terests of the state. Respectfully,
 JOSEPH F. JOHNSTON,
 Governor