
    Wilhelmina Meyer v. John Carolan.
    
      Queref As to whether and when a mandamus will lie from the Supreme Court or a judge thereof to the clerk of the District Court to compel him to approve an appeal bond.
    It seems that property exempt from forced sale is not to do considered in estimating the sufficiency of bail offered in a judicial proceeding.
    Appeal from Bexar. Wilhelmina Meyer applied to Chief Justice Hemphill, in vacation, for an alternative mandamus against Cavolan, clerk of tlie District Court of the county of Bexar, to approve a certain appeal bond and send up the transcript of the record in a certain case wherein said Moyer was plaintiff and two others were defendants. The alternative mandamus was issued, commanding tlie clerk to approve the bond which was sent with the writ, and send up a transcript of the record in said case, or show cause to the contrary ■on the iirst day of the next term of the Supreme Court to be held at the city of Austin. Cardan made tlie following return :
    “The plaintiff" nor either of the sureties who subscribed said bond do not “ possess any property except such as is exempt from execution or forced sale; “that one of tlie sureties is married and the head of a family, and is possessed “ of no property except his homestead and a right to three hundred and twenty “ acres of land from the German Emigration Company; that when said bond “was presented for approval this respondent called said sureties before him, “and each declared upon oath that the only property they possessed was only “ of the value of three hundred dollars each, which included their respective “ homesteads. Respondent, under these circumstances, did not feel authorized “to approve said appeal bond, believing that the same was inadequate for the “security of defendant’s rights. Respondent further states that he was actuated solely by a sense of duty and of his official obligations, believing “ that lie would have been liable to the party injured by approving a bond “which was insufficient to secure, their rights.”
    The bond was for $800. It did uot appear what was the judgment of ihe court from which the appeal was proposed. There wore some affidavits in ihe case taken by both parties to this proceeding, hut they did not vary the ease made by the clerk’s return, except that they proved the property of the sureties to be, more valuable than they had themselves represented to the assessor and collector and to the clerk as aforesaid, and to be sufficient, perhaps, in ihe absence of any law exempting- property from execution, to make the bond a good one.
    
      G. W. Paschal, for relator.
    The only question which I shall discuss in ihis case is the constitutional objection suggested by the court to the jurhdielion.
    I believe the 3d section of the 4th arliele of the constitution oxpros-dy gives the jurisdiction. The Supreme Court and judges shall have power to i-wue (lie writ of habeas corpus and writs of mandamus and such other writs as shall be necessary to enforce its own jurisdiction, and also compel a judge of the District Court to proceed to trial and judgment in a cause.
    This court, in-®. Costle.y, 7 Tex. It., issued a mandamus against the clerk for refusing to send up a record where the appeal had been allowed. This was, iu fact, a proceeding against the officer of the District Court.
    It ivas after full discussion, and, I had thought, settled the principle that the mandamus would issue in all eases where it is necessary to enforce the appellate jurisdiction. I can see no difference between this case and the refusal to deliver the record for want of cost.
    Several other cases to the same import were referred to at the last term. They generally established the principle that all powers necessary to enforce the appellate jurisdiction will be exercised, and that such an exercise of jurisdiction is not necessarily original. (State v. Charles, 1 Branch, 298; 7 American Dig-., 144, sec. 711.)
    A similar question was raised in Crane’s case, (o Peters, 189,) and decided in favor of jurisdiction. I big- leave to refer it to the question at bar. 'The reasoning- of Chief Justice Marshall is conclusive.
    
      Harris %• Pease, for respondent.
    It is contended for the defendant that the court, being one of appellate jurisdiction only, cannot take jurisdiction of this cause. (3 sec. 4 art. Const.) It would be the exercise of original jurisdiction. (Ex parte Crane et al., 5 Pet. R., 193; see also sec. 10 art. 4 Const.; Hart. Dig-., art. 2927, 2928.)
    Besides, the appeal bond tendered was not sufficient in law.
   Lipscomb, J.

The clerk of the District Court for the county of Bexar, to a rule upon him issued under the order of one of the judges of tiiis court (o show cause why a mandamus should not issue to him requiring him to take and receive the bond tendered to him as an appeal bond from the judgment of the said District Court, has shown cause, and now, by his counsel, asks (o be discharged on two grounds: first, that it is not a case, as made, out by (lie relator, in which the writ of mandamus should or could be legally issued; and, secondly, that if the case as presented would authorize the issuance of the mandamus, yet his answer is a full and sufficient one in law,,and the rule should be discharged.

It ivas said by this court, in discussing the grounds on which a mandamus could issue, “It is an undoubted principle of law that this writ will not issue “ against a public officer, unless to compel the performance of an act clearly “ defined and enjoined by law, and which is therefore ministerial in its nature, “ and neither involves any discretion nor leaves any alternative. (Glasscock v. Commissioner of the General Laud Office, 3 Tex. R., 53; 12 Pet. R., 524; 14 Pet. R., 514; 3 How. R., 100.) The same rule is laid down by the court iu Cullem’s Administrator v. Latimer, 4 Tex. R., 329, and iu the case of the Commissioner of the General Land Office v. Smith, 5 Tex. R., 478, 479.) Tlie language of this court is: “ It has been, however, by a series of decisions “in tlie Supreme Court of the United States, decided that a mandamus v/'úl “ issue to an officer of the government only when the duty to be performed is “ mini-terial in its character; but that where there is imposed upon tlie officer “by law a duty requiring the exercise1 of judgment or discretion, a mandamus “ will no! ID to control the exercise of Unit (ii.scretion. (12 Pet. R., 524, 609; “14 Id., 497; 7 Cranch, 504; 6 Wheaton, 598; 6 Howard, 92, 101; Board of “Land Commissioners v. Bell, Dallam, 366.) Respecting the general rule there “does not appear to have been any question, but the difficulty has been iu “ nniking ils application to particular cases, aud determining in such cases what “ acts are (o be. considered as merely ministerial and what not. Tlie distinction “ between ministerial and judicial and ol.lier official acts seems to be that, where “ the law prescribes and defines the duly to be performed with such precision “ and certainty as to leave nothing to (lie exercise of discretion or judgment “ in determining whether the duty exists, it is not to be deemed merely minis- “ terial.’’

There can be no doubt that tlie settled doctrine of this court is, that if the officer is requireijsto exercise his judgment or discretion in the discharge of any portion of his duties, so far as relates to those duties the mandamus will not lie to control such exercise of liis judgment or discretion. The clerk is required to take and approve of an appeal or writ-of-error bond, and se'nd up to this court a complete transcript of the record of the case, as it is of record ill the District Court. (Hart. Dig., art. 789.) If, after taking tlie bond, the cleric should fail or refuse to send up a transcript of tlie record, tlie writ of mandamus would lie, because he would have exercised and discharged the only discretion reposed in him by the law; aud what remained, tlie sending up ¡i transcript of the record, would be purely a ministerial act, iu which lie would have nothing to exercise his judgment upon. The ground upon which tlie relator in this case rested his application for the writ is the refusal of the clerk to accept the bond, although it was a sufficient bond that was tendered to him. How it is very clear that the question of the sufficiency of the bond tendered was a question for the exercise of tlie judgment of the clerk. Tlie law has imposed that duty upon him and not upon the appellate tribunal. If he wantonly disregards tlie duty required of him lie will be guilty of a malfeasance in office, and the remedy will lie against him for it at'the instance of the party injured, but not by tlie writ of mandamus. Tlie sufficiency of the security tendered is always a question of fact, and cannot well be tried by tlie appellate court, organized, as it is, without a jury. In this respect tlie powers of this court are more circumscribed than the court of King’s Bench; for, although that court was a court of appellate or revisionary jurisdiction, it could at all times impanel a jury to try a contested fact.

It would seem, from the views we have expressed, that the relator has failed to show a sufficient ground for the writ of mandamus, and that the rule should be discharged. This would have been the result, however, if we had been of tlie opinion that the petition showed sufficient ground for a mandamus, because the answer of tlie clerk is full and satisfactory, and establishes beyond all controversy that tlie clerk, so far from having been guilty of a malfeasance in office, has only faithfully discharged the duty required of him by the law; and had he acted otherwise, he would have wholly disregarded the rights of other parties inteuded by the law to be secured by a good'and sufficient bond.

We think, therefore, that tlie rule should be discharged and dismissed at the costs of the relator.

Hemphill, Ch. J.

Believing the return of the respondent to be sufficient, I concur in the result.

Wheeler, J.

The opinion which lias been pronounced expresses the views which I entertain in respect to the principles which mnst govern the issuing of writs of mandamus. It may he proper for me, however, here to add that I have heretofore expressed tlie opinion, (Arberry v. Beavers, 6 Tex. R.,) which. I still entertain, that a public officer, required by law to perform a duty which involves the exercise of discretion, may be guilty of so gross an abuse of the discretion conlided to him, or such an evasion of positive'duty as to amount to a virtual refusal to pen-form the duty enjoined or to act. at all in contemplation of law, and that in such a case a mandamus would afford a remedy where there was no oilier adequate remedy provided by law. A cleric, for instance, might captiously or wantonly refuse to approve an appeal bond tendered with ample security. In that case, if the fact were made satisfactorily to appear, I entertain no doubt of tlie power of the court to compel a performance of the duty. Such extreme eases arc not likely to occur. It may afford an occasion for the exercise of the power of the court to control the action of the officer. The present, manifestly, is no.t such a case.

Rule discharged.  