license fee of $20 a car per annum, notwithstanding there were other reliable parties willing to take the franchise at a license fee of $1,000 per car per annum and three-cent fares. The court thus justifies its use of extraordinary power:

"As between two such propositions, there can be no pretense for saying that in the exercise of an honest discretion the former might be preferred to the latter. It is not a debatable question whether a license fee of $1,000 per car per annum is more advantageous to the city than one of $20, nor whether the interests of the community will be better subserved by each citizen being compelled to pay a fare of three cents, instead of five. Therefore, even if it can be successfully maintained that the common council had the power to make the grant which the resolutions purport to make, it would be a gross abuse of power, and a flagrant violation of public duty, to make the grant as it was made, instead of making it to those who would pay, at the least, an additional million of dollars for it into the public treasury, and exact from the passengers only three cents fare, instead of five. Is it incontestable that such an abuse of power and violation of duty cannot be restrained by any court?"

63. When only apparently discretionary.-An official duty may appear from the wording of the statute imposing it to be discretionary when it is really ministerial. For instance, a statute may provide that a city council or other taxing body may levy taxes up to a certain limit. This grant will under certain circumstances be interpreted to mean that the council or other body shall levy taxes up to that limit. Even

though the words, "may, if deemed advisable," which ordinarily confer discretionary power, are used, they will still be interpreted as "shall," provided the money is needed to pay contract debts. The courts will not allow taxing bodies, having the power to do so, to deem it inadvisable to make such levy as is necessary to pay valid debts, and will by mandamus compel them to perform their duty.

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In Supervisors v. United States, the Supreme Court was called upon to interpret the following act: "The board of supervisors under township organization, in such counties as may be owing debts which their current revenue under existing laws is not sufficient to pay, may, if deemed advisable, levy a special tax, not to exceed in any one year one per cent, upon the taxable property of any such county, to be assessed and collected in the same manner and at the same time and rate of compensation as other county taxes, and when collected to be kept as a separate fund, in the county treasury, and to be expended under the direction of the said county court or board of supervisors, as the case may be, in liquidation of such indebtedness." Counsel for appellant insisted that this clothed the board with discretionary power, but the court, after citing The King v. Inhabitants of Derby, Skinner, 370; King & Queen v. Barlaw; Mayor of the City of New York v. Furze, 3 Hill, 614; and Mason v. Fearson, 9 Howard, 248, in which language ordinarily permissive was interpreted as mandatory, the court sums up the law as follows: "The conclusion to be deduced from the authorities is, that 74 Wall. 435 (U. S.).

where power is given to public officers, in the language of the act before us, or in equivalent language -whenever the public interest or individual rights call for its exercise-the language used, though permissive in form, is in fact peremptory. What they are empowered to do for a third person the law requires shall be done. The power is given, not for their benefit, but for his. It is placed with the depository to meet the demands of right, and to prevent a failure of justice. It is given as a remedy to those entitled to invoke its aid, and who would otherwise be remediless. In all such cases it is held that the intent of the legislature, which is the test, was not to devolve a mere discretion, but to impose a positive and absolute duty."

64. Ministerial duties of judicial officers.— Where, as not infrequently happens, ministerial duties are performed by judicial officers, whose duties are in the main discretionary, performance of such ministerial duties is enforced in the same way as though they were to be performed by a ministerial officer. To hold otherwise would be to enable the legislature to deprive many people of their legal rights by casting ministerial duties on judicial officers. In Grider v. Tally, the plaintiff asked for a mandamus to compel the defendant, a probate judge, to grant a license to sell liquor in the town of Belleforte, "having first complied with all the requirements of the law in relation to the granting of license to sell liquor." The mandamus was granted by the circuit judge and upon appeal his action was sus

8 77 Ala. 422.

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tained by the supreme court of the state. The defendant still refusing to grant the license, the circuit judge issued an attachment directing the sheriff to take said Tally into his custody and "him safely to keep until he issued a license as prayed." The section of the Code providing for the issuing of licenses is as follows: "No license must be granted to sell vinous or spiritous liquor, unless the applicant produce to the judge of probate of his county, or to the person authorized by law to grant such license, the recommendation of ten respectable freeholders and householders thereof, residing within four miles of such applicant, stating that they are acquainted with him, that he is possessed of good moral character, and is in all respects a proper person to be licensed." In interpreting this provision, the court says: "No power is conferred on the probate judge to pass on the moral character of the applicant, or whether he is a proper person to be licensed, or on the propriety of issuing a license. He adjudges nothing-decides no question. On the production of the proper recommendation, taking and subscribing the prescribed oath, and paying the requisite amount, it is the clear and specific duty of the probate judge to issue the license."

For the purpose of distinguishing judicial from ministerial acts, the court lays down the following rule: "Judicial power is authority, vested in some court, officer, or person, to hear and determine, when the rights of persons or property, or the propriety of doing an act, are the subject-matter of adjudication. Official action, the result of judgment or dis

cretion, is a judicial act. The duty is ministerial, when the law, exacting its discharge, prescribes and defines the time, mode and occasion of its performance, with such certainty that nothing remains for judgment or discretion. Official action, the result of performing, is a ministerial act."

This case illustrates very well the inadvisability of casting ministerial duties upon judicial officers. It tends to bring the judiciary into disrepute, to make for the judge political enemies without sufficient compensating features. As the common feeling of the community is that a judge exercises discretion in his acts, his judgment should not be brought into disrepute by his being required to perform duties which must be performed in a particular way, regardless of what his judgment might dictate. A judge who has been put in jail for contempt is not likely to retain the respect of the community to the same degree as he previously possessed it, and respect for the judiciary is no mean force in securing obedience to and respect for law.