Ex Parte Board of Education of Blount County

84 So. 2d 653, 264 Ala. 34, 1955 Ala. LEXIS 739

• Court: Supreme Court of Alabama
• Decided: November 28, 1955
• Docket: 6 Div. 962
• Status: Published

Opinions

SIMPSON, Justice.

This is an original proceeding seeking a writ of prohibition, mandamus or other appropriate remedial writ, by which to stay proceedings in the circuit court of Blount County on a petition for alternative writ of mandamus styled State ex rel. Amos A. Stewart et al., Case No. 3339, and to dismiss said petition for mandamus.

Patrons of the Blount County schools brought their petition for an alternate writ of mandamus in the circuit court seeking to vacate and annul a resolution of the Blount County Board of Education passed July 21, 1955. This resolution so altered the routes of county school buses as to prevent attendance of patrons’ children in the city schools of Oneonta and thereby render of no effect a ruling of the State Superintendent of Education (decided in 1954 and reaffirmed in 1955 by the present Superintendent) as to a transportation controversy between the City and County School Boards. The ruling was evoked from the Superintendent under the provisions of § 163, Title 52, Code 1940.

On consideration of the patrons’ petition for an alternate writ of mandamus, the circuit judge (respondent here) issued a rule nisi.

Petitioners here sought and obtained from this court a rule nisi on a writ of prohibition. We are now asked to grant that writ and to order the petition for mandamus to be dismissed on the ground that the circuit court of Blount County is without jurisdiction to entertain the petition of school patrons against their Board of Education as presented by mandamus.

We note that the act complained of in the patrons’ petition for mandamus — the Board’s resolution of July 21st — occurred prior to the passage of Act 201, Regular Session, 1955 Acts (commonly known as the Placement Act, which repealed said § 163, supra, and other sections of the School Code). As the school laws were written at the time of the resolution, we had decided that a patron’s remedy against his school board for enforcement of a public duty lay in mandamus. Board of Education of Jefferson County v. State, 222 Ala. 70, 131 So. 239.

However, we also note that the patrons’ petition was not presented until September —i. e., subsequent to the effective date of the Placement Act, August 3, 1955.

In our view, at the time the circuit court took jurisdiction of the controversy the law providing the method for testing actions of local school hoards was that specified in Act 201. Harlan v. State, 31 Ala.App. 478, 18 So.2d 744; Evers v. State, 32 Ala.App. 84, 21 So.2d 706. And with the repeal of said § 163 the prior order of the State Superintendent of Education became functus officio.

Act 201 provides, in part:

“Section 7. A parent or guardian of a pupil may file in writing with the local Board objections to the assignment of the pupil to a particular school, or may request by petition in writing assignment or transfer to a designated school or to another school to be designated by the Board. Unless a hearing is requested, the Board shall act upon the same within 30 days, stating its conclusion. If a hearing is requested the same shall be held beginning within 30 days from receipt by the Board of the objection or petition, at a time and place within the school district designated by the Board.

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“Section 9. The action of the Board shall be final except that in the event that the pupil or the parent or guardian, if any, of any minor or, if none, of the custodian of any such minor shall, as next friend, file exception before such Board to the final action of the Board as constituting a denial of any right of such minor guaranteed under the Constitution of the United States, and the Board shall not, within fifteen days reconsider its final action, an appeal may be taken from the final action of the Board, on that ground alone, to the Circuit Court in Equity of the Judicial Circuit in which the School Board is located, by filing with the Register within thirty days from the date of the Board’s final decision a petition stating the facts relevant to such pupil as bearing on the alleged denial of his rights under the Constitution, accompanied by bond with sureties approved by the Register, conditioned to pay all costs of appeal if the same shall not be sustained.

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“Section 10. Sections 56, 93, 163, ' 167, 318 and 319 of Title 52 of the Code of Alabama of 1940 are hereby re- . pealed.”

Since mandamus is an extraordinary remedy to be relied on only where there is no adequate remedy, we entertain the opinion that under the circumstances disclosed it was used improperly by the patrons to test the action of the school board. State ex rel. Holcombe v. Stone, 232 Ala. 16, 166 So. 602. Said Act 201, § 9, provides a method of appeal and review which until tested must be deemed adequate. When tested, should it be found inadequate, then an extraordinary remedy may again be demanded. It is noted that said § 9 limits the right of appeal to a determination of whether any constitutional right guaranteed under the federal constitution has been violated. But the case before us does not require a discussion of this statutory appeal. The said Act 201 provides for certain preliminary steps, the filing of objection before the board, etc., which the patrons in the instant case did not pursue. Hence they have not exhausted their remedy provided by the act and the proceedings show on their face that the trial court was without jurisdiction to issue the rule nisi.

We leave undecided the question of whether mandamus or other extraordinary remedy will lie where the provisions of said act have been exhausted without providing an adequate remedy, such as where a board has committed a gross abuse of discretion or has acted arbitrarily on a controversy which does not rise to the appealable status mentioned in said § 9 (infringement of a constitutional right). That question is not presented by this proceeding.

It results that the circuit court has no jurisdiction to entertain the petition of mandamus presented by the patrons and the writ of prohibition should issue.

It is true as contended by the respondent judge that as a general proposition he does have the duty of determining his own jurisdiction under the accepted principle that every court of general jurisdiction has the judicial power to determine the question of its own jurisdiction. Ex parte Textile Workers Union of America, 249 Ala. 136, 30 So.2d 247.

And as a general rule a writ of prohibition will not issue to an inferior court unless lack of jurisdiction has been brought to the attention of that court and a ruling on the question invoked. Donahoo v. St. John, 253 Ala. 604, 46 So.2d 420. But as observed in the last-cited case:

“ * * * there are recognized qualifications or exceptions to this general rule. It is declared by a majority of the courts that the rule that the matter must first be brought to the attention of the inferior court for a ruling as a predicate for the issuance of the writ is not rigid or arbitrary in its application, but is a rule of courtesy to be applied in the discretion of the superior court, on the principle that the matter of judicial courtesy should yield to substantial personal rights of litigants. 42 Am.Jur. 173, § 39; Ex parte State ex rel. Knight, 229 Ala. 513, 158 So. 317, citing 50 C.J., § 98, p. 697. An illuminating annotation appears in 35 A.L.R. 1090 et seq.

“This court has recognized one such qualification or exception where it is apparent that objection to jurisdiction would have been unavailing or would result in unnecessary or hurtful delay, or where applicant for the writ had no opportunity to object. * * * ” 253 Ala. 606, 46 So.2d 422.

The instant case falls within the last-stated principle because it appears from the answer of the respondent judge that he is contending that he does have jurisdiction and hence a challenge before him of his jurisdiction would have been unavailing. See also Ex parte Textile Workers Union of America, supra.

Writ of prohibition granted.

LIVINGSTON, C. J., and GOODWYN and MAYFIELD, JJ., concur.