People ex rel. McDougall v. Bell

Mr. Justice Wells delivered the opinion of the Court.

Mr. Oh. J. Murray concurred.' [178]The first question which suggests itself to the consideration * of the Court on this appeal is, whether a [178] mandamus is the appropriate remedy to compel an auditing officer to .correct a manifest error in his accounts, where said error has arisen from his erroneously pursuing a law, which was subsequently declared void ?

There appears to be no dispute as to the correctness of the items charged, and the only point raised is, whether such items were charged to the proper fund; and if not, whether the relator can resort to this remedy for relief:

The statutes of 1850, p. 64, § 13, provide as follows: “There shall be paid annually out of the General Fund, to the order of the Governor, a sum not exceeding five thousand dollars, to defray the contingent expenses of administering the Government of the State.” This fund is kept in a separate account by the Comptroller, and is denominated “The Governor’s Contingent Account.”

First, then, can the exercise of the functions of this writ of mandate be invoked in this case ?

We are of opinion that it can. It properly issues in all cases where there is not a plain, speedy and adequate remedy in the ordinary course of law. And we, think that this is precisely such a case. It is clear, from an examination of the statutes, that the items enumerated were improperly charged to the Contingent Fund. This error was made by an officer under a void Act, and although this Court has declared that Act invalid, the account remains charged as before such decision; the result of which is a positive wrong to the relator, who is left without any adequate remedy for the recovery of money justly due him in the ordinary course of law; and hence this proceeding is properly brought.

It is true that Courts of law have uniformly refused to allow the rule for a mandamus to issue, when it was to compel a person, inferior officer, Court or corporation to act in ■any particular manner, where such person, officer, Court or corporation was invested with discretionary power.

Whenever a discretionary power is vested in officers, and ■they have exercised that discretion, the Courts will not in[179]