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be enjoined from doing official acts unless it appears that they are proceeding without authority.305 As a rule the greater number of official acts, especially of executive and administrative officials are of a discretionary character both in respect to the manner and the time of their performance and a failure or a neglect to perform them in a particular manner or a particular time or the converse can lead to no rights in an individual as against the official.30 This principle especially applies to those duties in connection with the general administration of government affairs and determination of a governmental policy which are necessarily quasi political in their character and in respect to which, as already stated, public officials are answerable alone to the people who elect them or place them in office,307 and their action in this respect is not subject to review by courts.308 Official duties discretionary or ju

305 People v. Shasta County, 75 Cal. 179, 16 Pac. 776; Warren County Agricultural Joint Stock Co. v. Barr, 55 Ind. 30. Where county commissioners are proceeding to appropriate county funds to assist an agricultural society they may be enjoined from so doing. Davany v. Koon, 45 Miss. 71. The acts of an officer in his official capacity are presumed to be valid and within his authority, unless a departure from or a violation of law is apparent on the face of the transaction. People v. Washoe County Com'rs, 1 Nev. 460; Appeal of Delaware County, 119 Pa. 159, 13 Atl. 62.

306 State v. Woody, 17 Ga. 612. The exercise of discretionary power if done in good faith and without the violation of private rights, is not subject to judicial review. Andrews v. Knox County Sup'rs, 70 Ill. 65; Martin County Com'rs v. Kierolf, 14 Ind. 284; Bunnell v. White County Com'rs, 124 Ind. 1, 24 N. E. 370; Washington County Com'rs v. Kemp, 14 Ind. App. 604, 43 N. E. 314. The act of letting county printing is administrative and ministerial in its character. Holliday

v. Henderson, 67 Ind. 103; Murphy v. Oren, 121 Ind. 59; Hubbard v. Woodsum, 87 Me. 88, 32 Atl. 802; State v. Kearney County Com'rs, 12 Neb. 6; Potts v. City of Philadelphia, 195 Pa. 619, 46 Atl. 195; Brumby v. Boyd, 28 Tex. Civ. App. 164, 66 S. W. 874.

307 Smith V. Jefferson County Com'rs, 10 Colo. 20; Towle v. State, 3 Fla. 202; McWhorter v. Pensacola & A. R. Co., 24 Fla. 417, 2 L. R. A. 504; Rood v. Wallace, 109 Iowa, 5, 79 N. W. 449; State v. Robinson, 1 Kan. 188; State v. Board of Liquidation, 42 La. Ann. 647; Detroit Free Press Co. v. State Auditors, 47 Mich. 135; Balch v. City of Utica, 42 App. Div. 567, 59 N. Y. Supp. 516; Alter v. City of Cincinnati, 7 Ohio Dec. 368; School Dist. No. 17 v. Zediker, 4 Okl. 599; Carr v. Northern Liberties, 35 Pa. 324; White V. City Council of Charleston, 2 Hill (S. C.) 572; Eureka City v. Wilson, 15 Utah, 53; Goss v. State Capitol Commission, 11 Wash. 474.

308 Farrelly v. Cole, 60 Kan. 356, 56 Pac. 492. The action of the governor in calling an extra session of

dicial in their character that require the exercise of personal judg ment and discretion in their performance are conclusive unless fraud or mistake be shown,309 and further, cannot be controlled by mandamus or injunction.310 Official authority to act cannot, as a rule, be questioned in a strictly collateral proceeding.3

§ 653. Official authority; how exercised.

311

The necessity for a personal execution of public duties depends upon their character as ministerial, clerical or otherwise. Ministerial or clerical duties can be performed by subordinate appointees or employes,312 while all acts judicial in their character

the legislature will not be judicially reviewed since his determination of whether an extraordinary occasion exists is a particular discretionary act and conclusive. People v. Wayne County Auditors, 41 Mich. 4; Attorney General v. Common Council of Detroit, 112 Mich. 145, 37 L. R. A. 211; Stephens v. Santee, 49 N. Y. 39; State v. King, 20 N. C. (4 Dev. &B.) 661; State v. Hawkins, 44 Ohio St. 98; State v. Buchanan (Tenn. Ch. App.) 52 S. W. 480; State v. Forrest, 13 Wash. 268, 43 Pac. 51.

309 McCoy v. Able, 131 Ind. 417, 30 N. E. 528, 31 N. E. 453; Farnsworth v. Kalkaska County Sup'rs, 56 Mich. 640; Ter. v. Yellowstone County Com'rs, 6 Mont. 147; Stenberg v. State, 48 Neb. 299, 67 N. W. 190; People v. Dutchess County Sup'rs, 9 Wend. (N. Y.) 508; Culpeper County Sup'rs v. Gorrell, 20 Grat. (Va.) 484. Whether county supervisors have exercised a discretionary power properly cannot be inquired into in a collateral proceeding. But see State v. Brown, 10 Or. 215. 310 Provident Sav. Life Assur. Soc. v. Cutting, 181 Mass. 261, 63 N. E. 433; People v. Chapin, 103 N. Y. 635; State v. Fire Com'rs of Cleveland, 26 Ohio St. 24; State v.

Abb. Corp. Vol. II-39.

Public Bldg. Com'rs, 12 Rich. Law (S. C.) 300. But see as to when mandamus will lie. Board of Liquidation v. McComb, 92 U. S. 531; State v. Rotwitt, 17 Mont. 537; State v. Cromer, 35 S. C. 213.

Injunction will lie, see Johnson v. Towsley, 80 U. S. (13 Wall.) 72; Crampton v. Zabriskie, 101 U. S. 601; Walton v. Develing, 61 Ill. 201; Lane v. Schomp, 20 N. J. Eq. (5 C. E. Green) 82; People v. Canal Board, 55 N. Y. 390.

311 Western Wheeled Scraper Co. v. Sadilek, 50 Neb. 105, 69 N. W. 765. "Counsel for the plaintiff indulge in some criticism upon the action of the defendant on account of the deposit in bank of the county funds, and the payment of the warrant after having been endorsed 'Not paid for want of funds.' To the first criticism a sufficient answer is that neither the validity nor propriety of the defendant's action in depositing the funds entrusted to his care can be questioned in this collateral proceeding."

312 Hope v. Sawyer, 14 Ill. 254; Abrams v. Ervin, 9 Iowa, 87. Ministerial duties of a public officer may be discharged by deputy when not otherwise provided by law; the

313

or involving the elements of judgment and discretion as depending upon particular official qualifications require a personal performance.3 The latter rule is also true where the law imposes a personal execution of official duties. The referring of public business to a committee or a subcommittee with power to act is usually held as not coming within the principle requiring personal execution of official duties.315

rule will not apply to judicial duties. "When the duties of a public officer are of a ministerial character, they may be discharged by deputy. Duties of a judicial character cannot be so discharged. The clerk is a ministerial officer. When the law gives him power to appoint a deputy, such deputy, when created, may do any act that the principal might do. He cannot have less power than his principal. He has the right to subscribe the name of his principal; and the act of the deputy, in the name of the principal, within the scope of his authority, is the act of his principal." Ellison v. Stevenson, 22 Ky. (6 T. B. Mon.) 275; Triplett v. Gill, 30 Ky. (7 J. J. Marsh.) 432; Philadelphia & R. R. Co. v. Com., 104 Pa. 86.

313 City of Stockton v. Creanor, 45 Cal. 643; Richardson v. Heydenfeldt, 46 Cal. 68; Dyer v. Brogan, 70 Cal. 136, 11 Pac. 589; Glidden v. Hopkins, 47 Ill. 525; Kansas City v. Hanson, 8 Kan. App. 290, 55 Pac. 513; Chapman v. Inhabitants of Limerick, 56 Me. 390; State v. Shaw, 64 Me. 263; People v. Governor, 29 Mich. 320. "Where a duty is devolved upon the chief executive of the state rather than upon an inferior officer, it will be presumed to have been done because his superior judgment, discretion and sense of responsibility were confided in for a more accurate, faithful and discreet performance than could be relied upon if the

duty were put upon an officer chosen for inferior duties; and such a duty can seldom be considered as barely ministerial."

Danforth v. City of Paterson, 34 N. J. Law, 163; Turner v. City of Newburgh, 109 N. Y. 301, 16 N. E 344; Beam v. Jennings, 96 N. C. 82, 2 S. E. 245. The official acts of the secretary of state in North Carolina must be performed personally. Duluth, S. S. & A. R. Co., v. Doug. lass County, 103 Wis. 75, 79 N. W. 34. But see Sheehan v. Gleason, 46 Mo. 100.

314 Coquard v. Chariton County, 14 Fed. 203; People v. Town of Linden, 107 Cal. 94, 40 Pac. 115; Dowling v. Adams (Cal.) 41 Pac. 413; San Francisco Gaslight Co. v. Dunn, 62 Cal. 580; In re Ah You, 88 Cal. 99, 25 Pac. 974, 11 L. R. A. 408; Rauer v. Lowe, 107 Cal. 229; Warren v. Ferguson, 108 Cal. 535; Dorsett v. Garrard, 85 Ga. 734; Lattin v. Smith, 1 Ill. (Breese) 361; City of Jeffer sonville v. Patterson, 32 Ind. 140; Benjamin v. Webster, 100 Ind. 15: Anderson v. Claman, 123 Ind. 471; Pleasant View Tp. v. Shawgo, 54 Kan. 742, 39 Pac. 704; Crittenden County Ct. v. Shanks, 88 Ky. 475; City of Westport v. Mastin, 62 Mo. App. 647; Rotenberry v. Yalobusha County Sup'rs, 67 Miss. 470.

315 Holland v. State, 23 Fla. 123, 1 So. 521; Phinney v. Mann, 1 R. I. 205. But see People v. Williams, 36 N. Y. 441.

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(a) Must be exercised in the name of the public. The performance of all acts in connection with the transaction of public affairs must be in the name and on behalf of the corporation.316 Officers derive the sole authority and power to perform their official duties from the public they represent.

(b) Must be exercised in the manner prescribed by law. Official power and authority must also be exercised in the manner prescribed by law in respect to the performance or transaction of specific acts.317 Such provisions, whether constitutional or statutory, are usually held mandatory, and in the absence of a compliance with them no authority will exist.318

(c) Independence of official action. The rule has been already stated that the different departments of government are not subject to the control of any other except in accordance with existing constitutional provisions, if any.319 A similar principle also applies to different officers in the same branch or department of government. Every office is created by law and its incumbent vested with the official authority to perform certain acts and exercise certain powers. In this he may be subject to the supervision and control of other officers or entirely independent and subject to no restraint or supervision of this character. Where the latter condition exists, it is unnecessary to add that other officials have no legal authority to direct where, when or how the

316 State v. Dews, R. M. Charlt. (Ga.) 397; Hunter v. Field, 20 Ohio, 340; Lehigh Coal & Nav. Co. V. Inter-County St. R. Co., 167 Pa. 75, 31 Atl. 471. Official action induced by bribery confers no rights.

317 City of Little Rock v. State Bank, 8 Ark. 227; Hudson v. Jefferson County Ct., 28 Ark. 359; Glass v. Ashbury, 49 Cal. 571; Gorman v. Boise County Com'rs, 1 Idaho, 627; Hoxie v. Shaw, 75 Iowa, 427, 39 N. W. 673; Shawnee County Com'rs v. Carter, 2 Kan. 115; Weston v. Dane, 53 Me. 372; Wickes' Lessee v. Caulk, 5 Har. & J. (Md.) 36. Where acts of commissioners are void for want of jurisdiction, they are not validated by any length of acquiescence.

Illinois v. Delafield, 8 Paige, (N. Y.) 527; In re Orange St., 50 How. Pr. (N. Y.) 244; Stiles v. City of Guthrie, 3 Okl. 26, 41 Pac. 383; Jewell Nursery Co. v. State, 4 S. D. 213, 56 N. W. 113; Ireland v. Taylor, 68 Tex. 158, 4 S. W. 65; Endion Imp. Co. v. Evening Telegram Co., 104 Wis. 432, 80 N. W. 732.

318 Winn v. Shaw, 87 Cal. 631, 25 Pac. 968; Glidden v. Hopkins, 47 Ill. 525; State v. Pierce, 52 Kan. 521, 35 Pac. 19; Free Press Ass'n v. Nichols, 45 Vt. 7; State v. Manitowoc County Clerk, 48 Wis. 112.

319 Benford v. Gibson, 15 Ala. 521; Allen v. State, 32 Ark. 241.

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duties of an office shall be performed and its authority exercised; 320 or refrain from performing duties imposed upon them by law because in respect to the same transaction, duties imposed upon other officers have been, in their judgment, erroneously done.321

§ 654. Personal execution of official duties.

It is customary in many cases to provide by law for the performance of official duties through deputies 322 or by designated officials in case of the absence or temporary disablement of a public officer,323 and where these provisions exist, the existence of the conditions given will authorize such action as may be contemplated by law. The performance of official duties in these cases by either a deputy or a substitute will be regarded as legal and will have the same force and effect as the personal execution by the head of the department.324

§ 655. Joint authority; how exercised.

Official authority or power must be exercised not only in the manner prescribed by law and in the name of the public but also when exercised by an official board or body by that board or body

320 Halbert v. State, 22 Ind. 126; State v. Buckles, 39 Ind. 272; Long v. Kentucky Central Lunatic Asylum, 9 Ky. L. R. 699, 6 S. W. 335. Concurrent authority and supervision may be given by law. City Savings Bank v. Huebner, 84 Mich. 391, 47 N. W. 690; Cornell v. Irvine, 56 Neb. 657, 77 N. W. 114; Lowber v. City of New York, 5 Abb. Pr. (N. Y.) 325; Balch v. City of Utica, 42 App. Div. 567, 59 N. Y. Supp. 516.

321 Hommerich v. Hunter, 14 La. Ann. 225; Thomas v. Owens, 4 Md. 189; Weimer v. Bunbury, 30 Mich. 201; People v. Flagg, 16 Barb. (N. Y.) 503; Bates v. Fries, 2 Disn. (Ohio) 511; Com. v. Taylor, 36 Pa. 263; Cunningham v. Mitchell, 67 Pa.

78. But see Com. v. Henry, 49 Pa. 530.

322 Merlette v. State, 100 Ala. 42, 14 So. 562; Roberts v. People, 9 Colo. 458, 13 Pac. 630; Nesbit v. People, 19 Colo. 441, 36 Pac. 221; Amrine v. Kansas Pac. R. Co., 7 Kan. 178; Maloney v. Mahar, 1 Mich. 26; McNair v. Hunt, 5 Mo. 300.

323 Galveston Railroad V. Cowdrey, 78 U. S. (11 Wall.) 459; Lynde v. Winnebago County, 83 U. S. (16 Wall.) 6; Barnard v. Taggart (N. H.) 29 Atl. 1027.

324 People v. Shorb, 100 Cal. 537, 35 Pac. 163; Whitford v. Lynch, 10 Kan. 180; State of New York V. City of Buffalo, 2 Hill (N. Y.) 434; Miller v. Lewis, 4 N. Y. (4 Comst.)

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