
    NICHOLS VS. THE COMPTROLLER.
    
      h A mandamus lies against an officer of the executive department, to compel the performance of his duty.
    2. So, mandamus will go to the comptroller of public accounts, to compel the issuance of a warrant on the treasury — where the right to such warrant is clear; and no other remedy is provided.
    8. In order to authorise the comptroller to issue his warrant on the treasury, for the amount of a salary, it is not necessary that there should he a special, annual appropriation, by act of the legislature — where there is a general law, fixing the' amount of the salary, and prescribing its payment at particular periods.
    4. Where commissioners of the State capítol, were authorised to appoint a superintendent, who was allowed a certain amount, as a salary; and the commissioners were limited to three years for the completion of the capítol — held, that they could not con.íinue tho services of the superintendent, beyond (hat period — so as to authorise him to draw a continuance of of his salary, under the statute.
    In this case Nichols, the plaintiff in error, petitioned the Circuit Court of Tuskaloosa Courtly, for a rule against G. W. Crabb, the comptroller, reqiring him to shew cause, why a mandamus should not issue, compelling him to grant a warrant on the treasury.
    ■By statute, enacted on the 3d January, 1S27, providing for tlie erection of a State Capitol, com missioners were appointed to carry into effect, the re-q uirements and duties therein prescribed. One of the powers conferred upon them, was the appoinlmerit of a superintendent of the building aforesaid; and, under that, act, the plaintiff in error was appointed.
    On tlie 15th January, 1S2S, further powers were conferred by statute, upon the commissioners; by the fourth section of which act, the said Nichols was compensated lor his services, up to the 1st January, 1828; and by the second section, an annual salary was allowed himj of seventeen hundred aud forty-nine dollars, payable quarter yearly, out. of any money in ihe Ireasury, not otherwise appropriated.
    By the tifdi section of the act of 1827, the commissioners were required to complete the said capí-tol within three years.
    Tl.e petition of Nichols, for the mandamus, was filed at March Term, 1530 ; and in it he averred, that he had taken upon himself, and regularly discharged the duties of his appointment; and that, his last quarter yearly salary being due and payable on the first day of April, 1830, the commissioners, in pursuance of the before mentioned statutes, issued their certificate to the comptroller, staling' that 1 he said quarter yearly salary was due to the said Nichols, for his services as superintendent: but that the comptroller refused to issue a warrant on the treasury, for the said amount; of his quarter yearly salary — and he prayed a mandamus.
    The Court, on hearing, discharged the rule for the mandamus; and Nichols removed the case into this Court, by writ of error.
    
      Ellis, for the plaintiff in error — Martin, contrae'
    
   Per Curiam.

This is an application on the part of William Nichols, superintendent, of the. State cap-itel, for a rule against the comptroller of public accounts, requiring him to show canse why a mandamus should not issue, commanding him to grant a warrant on the Slate treasury, in favor of said su¡ er« intendenta lor his,first quarter's salary, of the present year.

The case has been fully argued, and with ability, and requires much deliberation in arriving at a correct conclusion.

We lay down the proposition as true, that the Circuit Court, being a Court of general common law jurisdiction, has authority to grant writs of manda- ■ mns in all cases where a mandamus is the appropriate remedy. And though the three [lowers of the government are declared by the constitution to he co-ordinate branches, and can not encroach on cadi .other; yet it was never contemplated that ihe granting of a mandamus, 1o compel an officer in the executive department to do his duty, would be such an encroachment.

Tile constitution expressly grants to the Circuit Court, original jurisdiction, in all matters, civil and criminal, not odierwise excepted in the constitution. The issuing of a mandarnos, (being authorised by 1 he laws in force at the adoption of the constitution, and which were also adopted by the same instrument,) has, by the constitution itself, become a necessary incident to this original jurisdiction of the Circuit Court.

The next, inquiry is, in what cases m jy a mandamus issue? It is said, by the best authorities, that, ¿t may go, ixi all cases where there is a clear right, •and (here is no oilier remedy known to die law.— That it may go to ministerial or exemi ive officers, to Compel them todo timir dot v. 6u‘. We h< Id, then, lhat it muy «d to liie comptroller of the treasury department, to compel him to grant a warrant on the treasury, if the right of the party be clear, and there is no other remedy known to the lawn

In ihe case under consideration, it was contended, that die architect had anolher remedy, known to the law, which was a suit against ihe Stale. But, we apprehend, where the demand is lor a quarter's salary, fixed and appropriated by law, and made payable quarter annually, at. the treasury, that a suit could not. he sustained against the State. Because, in all such cases, it is ihe duty of the eomp'roller to grant his warrant on the treasury — no soil or judgment against. ihe State, could better ascertain the amount, due, or confer a belter right than the appropriation already made by law. It is conceded that, no money can be drawn from the treasury, but in pursuance of an appropriation made by law, but it is not necessary, 1 hat there should be an act passed annually, for the appropriation: if there, is a general law, fixing ihe salary, requiring it to be paid at the treasury, annually or quarter annually, this is sufficient.

If there was a clear right, ihe act, therefore, giving to the architect, of ihe Stale capitel, an annual salary of one thousand seven hundred and forly-nine dollars, to be paid quarter annually, out. of any mo-,;riy in the treasury, not. otherwise appropriated; together with the certificate of the commissioners, stating that the architect, had done his duty, and was entitled to receive his pay, was a sufficient authority for the comptroller to issue his warrant.

Wc are therefore inclined 1o think, that if Nichols lias a dear right, the mandamus ought to be granted ; and which is now the only remaining enquiry.

A part of 1I10 Dili section of theaclof 1527, reads as follows — that ihe commissioners, aforesaid, shall cause the said State Capitol to be completed at as early a lime as practicable, not exceeding three years.”

The act went into operation from the lime of its passage, and was passed, Üd January, 1827.— It of course expired by its own limitation, on the 3d of last January'. The commissioners were appointed for the express purpose of causing the State Capitol to be built and completed — but. if this was not done in three years, ihey had no authority to proceed in the work after that time. With their power, ihe office and salary of architect, also ceased — unless the limitation was extended to a farther time by some subsequent law, but which law we have been unable to find.— The architect, therefore, bad no (dear right, after the od of January last. The rule is therefore d is-* charged with costs.”  