On Demurrer to the Petition.

GARDNER, J.

The state, on the relation of the Attorney General, filed in this court an original petition for mandamus, to be directed to the respondent as one of the judges of the Fourteenth judicial circuit, seeking to have said judge vacate and set aside an order entered by him on April 25, 1922, in Winston county circuit court, wherein the jury box for the Double Springs division of said court was quashed and held invalid.

The submission of the cause at this time is upon the demurrers of the respondent to the petition, and its sufficiency, therefore, is the only question now presented for consideration.

It is the contention of the state the order of the circuit judge quashing the jury box and holding the same invalid was void upon several grounds; but the conclusion we have reached only requires a consideration of one of these grounds, which reaches the fundamental question in the case, and that is that the respondent acted without authority in entering the order. Upon its face the order discloses that respondent held the jury box invalid for the reason that in his opinion it contained only a small part of the qualified jurors of that division of the court. It is in effect a finding that in the opinion of the respondent the jury commission had been derelict in its duty in failing to place upon the jury roll and in the jury box the names of all persons residing within that division of the circuit court of Winston county who were qualified to serve in that capacity and the recitals of the order disclose that the jury box was quashed because respondent was of the opinion that the method by which it was orginally filled was irregular on this account. Respondent rests his authority for this action upon the provisions of section 7243 of the Code of 1907. A reading of this section discloses clearly a clerical omission of the word "box" following the word "jury" in the second line, as a reference to the original act demonstrates. Supplying this omission said section reads as follows:

"Whenever in the opinion of the presiding judge of the circuit, city, or criminal court in any county the jury [box] of such county has for any reason become illegal or irregular, he may enter an order on the minutes of the court in term time, declaring the jury box of the county illegal and irregular and requiring the jury commissioners of the county to assemble on a day and place, to be named in the order, to destroy the names which may be in the box, and refill the box in the manner required by law applicable to filling jury boxes in the respective counties. The commissioners, in the performance of their duties under the order, must proceed in all things according to the provisions of the jury law applicable to the respective counties for which the box is to be refilled."

We are of the opinion this section does not support respondent's contention, for the authority therein given is to be exercised only when the jury box has become illegal or irregular, and was not intended to give to the circuit judge supervisory power over the jury commission in exercising their original authority and jurisdiction in making up the jury roll and filling the jury box. Reduced to its last analysis, the order discloses that the jury box is quashed because in the opinion of the circuit judge the jury commissioners have not properly exercised their judgment and discretion in orginally making up the jury roll and filling the jury box. This was a duty, however, devolving upon the jury commissioners selected under the law from the electorate of the county, which involved the exercise of a wide discretion, and it was not intended by the foregoing provision of the Code that this discretion should be superseded by that of the circuit judge.

In State ex rel. Denson v. Miller, 204 Ala. 232, 85 So. 698, the petition avers the jury box was unlawfully emptied and illegally and fraudulently refilled, which presents an entirely different case from that here in question. Indeed, the opinion in that case recognized that the discretion existed in the jury commission for the selection of names for the jury and the filling of the jury box and referred approvingly to the case of Jury Commission of Morgan County v. State, 178 Ala. 412, 59 So. 594. In the latter case it was pointed out that, when the process of placing the names in the jury box had been completed, there was no authorization for any person or persons or any board or body to withdraw from the jury box a name or names, except that of judicial officials or courts in the performance of duties by law, and that a replenishment of the jury box is restricted to the provisions of section 12 of the act of 1909 (Acts 1909, p. 309), on the condition that the names in the jury box are exhausted or so far depleted that they will probably be depleted at the next drawing of the jury. The case of Garner v. State, 206 Ala. 56, 89 So. 69, did not present the question here considered.

That the original selection of the jury is a matter resting within the discretion of the jury commissioners is fully demonstrated by the opinion of this court in the case of Green v. State, 73 Ala. 26, where was used the following language here pertinent:

"There is, and must be, an official discretion, reposed somewhere, to be exercised in furnishing a list or body of names, from which jurors, grand and petit, must be chosen. If the statute specify the qualifications for jury service, and command that jurors, to be selected, must possess such qualifications then the person or persons charged with the selection must of necessity decide who of the citizens possess the requisite qualifications. * * *

"It will be seen, in what we have shown above, that under our statutes we were forbidden to inquire in any collateral proceeding whether or not the officers charged with the duty have judiciously selected from the body of the freeholders and householders of the county a jury list of persons possessing the requisite qualifications. That power was ex industria taken away from the judiciary of this state more than 40 years ago. The policy of the statute was that grand and petit jurors in this state should be a selected class, not an indifferently summoned number from the whole body of electors. A discretion thus confined by legislative authority to officers of this state or county, to be exercised according to their opinion or judgment, cannot, on principle, become a judicial question. If there was abuse, it would seem the redress was intended to be left to the removal of the faithless officers, or in the legislative change. We confess ourselves unacquainted with any principle which would, in the absence of proof of official corruption, partiality, or dereliction, authorize us to revise or reverse the judgment or opinion of the officers clothed with the trust as to who of the male inhabitants of the county did or did not possess the requisite qualifications to authorize the placing of their names on the jury list."

We do not question, of course, the inherent power of the court in proper cases for inquiry into fraud and illegality in the selection of jurors, and, indeed, this authority was expressly recognized in State ex rel. Denson v. Miller, supra; but the instant case does not come within the influence of that decision, for the order here in question discloses upon its face that in effect the act of the jury commission is declared invalid because the judge is of the opinion that they have not properly performed their duty, in the exercise of the discretion vested in them by law, and, indeed, the order recites that the judgment of the court is rested "upon the fact the jury commission is radically wrong." But, as said by this court in Green v. State, supra:

"Under our statutes" the courts "are forbidden to inquire in any collateral proceeding, whether or not the officers charged with the duty have judiciously selected from the body of freeholders and householders of the county a jury list of persons possessing the requisite qualifications."

The conclusion is reached, therefore, that the averments of the petition show the circuit judge acted beyond his authority, and that his order should be vacated.

But it is insisted that mandamus is not the proper remedy. In Ex parte Ala. Fuel Iron Co., 193 Ala. 496, 69 So. 115, mandamus was awarded to have vacated an order of the circuit judge which, in the opinion of this court, was entered without authority of law. Mandamus, therefore, is the proper remedy in a case of this character.

The argument is further advanced that in mandamus proceedings it should be made to appear that demand had been made to the respondent to set aside the order before filing the petition. This rule is correct as applied generally in the enforcement of private rights. Ex parte Edwards, 123 Ala. 102, 26 So. 643; Hill v. Tarver, 130 Ala. 592, 30 So. 499. The rule is different, however, as recognized by the great weight of authority, where the duties sought to be performed are of a public nature, or those which affected the public at large. In such class of cases no one being specially empowered to demand the performance of the act, there is no necessity for such demand and refusal; the law under such circumstances stands in lieu of the demand. The following excerpt from High on Extraordinary Legal Remedies, § 13, very clearly points out this distinction:

"As regards the necessity of a previous demand and refusal to perform the act which it is sought to coerce by mandamus the authorities are not altogether reconcilable. The better doctrine, however, seems to be that which recognizes a distinction between duties of a public nature, or those which affect the public at large, and duties of a merely private nature, affecting the rights of individuals only. And while in the latter class of cases, when the person aggrieved claims the immediate and personal benefit of the act or duty whose performance is sought, demand and refusal are held to be necessary as a condition precedent to relief by mandamus; in the former class, the duty being strictly of a public nature, not affecting individual interests, and there being no one specially empowered to demand its performance, there is no necessity for a literal demand and refusal. In such cases the law itself stands in lieu of a demand, and the omission to perform the required duty in place of a refusal."

See Id. § 41. To the same effect see 18 R. C. D. 123, and authorities cited in the note.

This rule was recognized by this court in State ex rel. City of Mobile v. Board of Revenue, 180 Ala. 489, 61 So. 368, where it was said:

"Public duties ought to be discharged without waiting for the prod of a judicial writ; no preliminary demand was necessary."

This principle is very generally recognized. 26 Cyc. 443. The case of Moseley v. Collins, 133 Ala. 326, 32 So. 131, cited by counsel for respondent, was for the enforcement of a private right, and therefore not here in point, although the opinion of the court quotes approvingly from Merrill on Mandamus, wherein the distinction above noted is made. The case of Herbert v. Board of Education, 197 Ala. 619, 73 So. 321, was decided strictly upon its merits, and the question here presented was not determined.

We are of the opinion that the petition is not subject to the objections here urged, and the demurrer thereto will accordingly be overruled.

Demurrer overruled.

All the Justices concur.

On Demurrer to the Answer.

PER CURIAM.

The former opinion in this cause dealt with the demurrer of respondent to the petition for mandamus, which demurrer was overruled. The present submission is upon demurrer to the answer, and its sufficiency as a defense to the petition is thereby presented.

As disclosed by the previous opinion in this cause, the respondent rested his action upon the provisions of section 7243 of the Code of 1907, and the answer which was on file at the time of the submission of the demurrer has remained unchanged and without amendment of any character since the decision rendered upon the former submission. So far as any meritorious question presented on this submission is concerned, the court is of the opinion that the views previously expressed in passing upon the demurrer to the petition are conclusive to the effect that the demurrer to the answer is well taken, and a further discussion of the subject is unnecessary.

Let the demurrer be sustained.

ANDERSON, C. J., and SAYRE, GARDNER, and MILLER, JJ., concur.