Ex parte Boothe

64 Ala. 312

• Court: Supreme Court of Alabama
• Decided: December 15, 1879
• Status: Published

Opinion

STONE, J.

The present petitioners compose the Board of Revenue of Autauga county, appointed under the act creating the board, approved February 27,1879. — Pamph. Acts, 248. This case arose as follows : The Board of Revenue cited the sheriff of Autauga county before them, to show cause why he should not be required to execute a new hondas sheriff. The hearing and trial were had, on evidence introduced by each party, on the 5th day of May, 1879; and the board made an order, “ that the said John B. Simpson, as sheriff, appear before the Board of Revenue, on the 15th day of May, 1879, and execute a new bond as such sheriff as aforesaid, in the penal sum of ten thousand dollars, payable and conditioned as required by law.” The penalty of the bond, under which the sheriff liad been acting, was five thousand dollars, and was, in the order made by the board, pronounced “ insufficient in amount.” The sheriff did not obey this order, and failed to execute a new bond.

On the 14th day of May, 1879 — one day before the day set for the execution of the new bond — Simpson, the sheriff, presented his petition to the judge of the circuit at chambers; in which petition he charged, that the bond under which he was acting was sufficient in the amount of its penalty to protect the public and all private suitors, in all their interests in his hands ; that on the trial on the -5th of May, it was not shown that his bond was insufficient in amount, or in the solvency of his sureties; that he had been a faithful public officer, and had committed no defaults; that the order of the Board of Revenue, requiring him to execute a new bond, was made, not because the bond under which he was acting was insufficient, but as a means of ousting him from his office through his inability to execute the new bond required. We do not quote the language of the petition, but what we have stated contains the substance of the charges, -which are made with great fullness of expression. The prayer of the petition is in the following language: “ Tour petitioner would respectfully represent, that the said action of the Board of Revenue is a proper case calling for the exercise of the superintending power and authority vested by law in your Honor as a judge of the Circuit Court of said State ; and in view of, and upon consideration of the premises, your petitioner prays your Honor to issue the necessary or appropriate writs, ordering the clerk of the Circuit Court of said county to issue a writ of certiorari, or other proper or appropriate writ, commanding said Board of Revenue to stop any further action or proceeding as to his said official bond, and that they take no further steps in requiring him, your petitioner, to give said new bond, and that they cease all further action and steps relating to the same; and that said board do not require him, your petitioner, to give a new bond, and prohibiting said board from requiring a new bond from your'petitioner, and from certifying to the governor of said State that a vacancy exists in the office of sheriff of said county, and to cease from all further action relating to his said official bond, connected with said proceedings, and send up to the Circuit Court of said county, to the first day of the next term thereof, a correct, true and full transcript of all the proceedings of said Board of Revenue touching or relating to your petitioner’s said official bond, or requiring him to give a new official-bond; on which day, and on the hearing of the petition, your petitioner will produce to your Honor a true copy of his said official bond, and produce testimony showing the sufficiency of said bond.”

On the presentation of this petition, the judge of the circuit indorsed a fiat, directed to the clerk of the Circuit Court of Autauga county, commanding him, “upon the said John B. Simpson executing a bond,” &c., “to issue the writ which the said petitioner prays — that I command you to issue as such clerk, to the Board of Eevenue of Autauga county, ordering and directing them as prayed for in said petition.” This petition was filed with the clerk, on the fifteenth day of May, and on that day the clerk issued a positive writ of prohibition and certiorari to said board, which was served on each member of the board who was in attendance on that day. The Board of Eevenue disobeyed the writ of prohibition, and proceeded to certify the vacancy to the governor.

The petitioner subsequently presented his application to the circuit judge at .chambers, supported by his affidavit, bringing to the judge’s notice the fact that the Board of Eevenue had disobeyed his order. The judge thereupon ordered a notice to be issued to said Board of Eevenue, and each member thereof, requiring them “to appear before the judge of court [Autauga] at the next term, on the fourth day thereof, and show cause in writing, under oath, why they and each of them are not in contempt, and why they and each of them should not be punished therefor.” This order was made in vacation. The notices thus ordered were issued and served. Thereupon, and before the day set for the hearing in the Circuit Court on said charge of contempt, the members of the Board of Eevenue presented their petition to this court, setting forth, in extenso-, the proceedings previously had, a summary of which is given above, and praying this court to cause a writ of mandamus, writ of prohibition, or other appropriate writ, to be issued to the judge of the Circuit Court, requiring him to vacate and set aside said order, or that he be prohibited from making any order, or exercising any jurisdiction over the said Board of Eevenue, under the writ issued and served on your petitioners by the said clerk of the Circuit Court of Autauga county; or, that your Honors will issue such writ, or make such order and decree, as to your Honors may seem proper.” On this petition of the members of the Board of Eevenue, this court ordered that a rule nisi issue to the honorable judge of said court, requiring him to show cause before this court why a writ of prohibition should not be awarded as prayed for; and it was further ordered, that all further proceedings in said cause before said judge be stayed until the further order of this court. No cause has been shown against the action of this court, other than what may arise out of the facts above summarized.

It is contended for petitioners, that the action of the Board of Eevenue, in pronouncing Simpson’s bond insufficient, and in requiring a new bond, was final and conclusive, and that the Circuit Court had no jurisdiction to hear evidence, and retry the question of the sufficiency of the bond. And on this ground, it is here argued, that the writ of prohibition should issue. We agree with counsel, that the question of the sufficiency of the sheriff’s bond was exclusively within the cognizance of the Board of Bevenue, and that no matter how erroneous the conclusion they arrived at may have been, the proceedings being regular in form, the Circuit Court could not re-examine the question, or reverse their decision. To that body is confided much of the police administration of the county; its conscientious exercise is guaranteed by the manner of their selection, and by their official oaths-; and the law has given no appeal, or right to review their rulings, in such a case as this. — Ex parte Davis, 52 Ala. 87; Ex parte Thompson, Ib. 98; State, ex rel. v. Tucker, 54 Ala. 205; Beebe v. Robinson, 52 Ala. 66.

It does not follow, however, that because the Circuit Court had no power to retry the question, this court will award a prohibition to restrain his action. Prohibition is not a revisory writ, and should never be awarded, unless the complaining party has been drawn ad aliud examen — into a jurisdiction or mode of procedure disallowed by the laws of the land, or where, by handling matters clearly within their cognizance, the inferior courts transgress the bounds prescribed to them by law. — 2 Brick. Dig. 389, § 5 ; Ex parte Reid, 50 Ala. 439; Ex parte Roundtree, 51 Ala. 42; Ex parte State, ex rel., 51 Ala. 60. The judges of the Circuit Court have authority to grant writs of certiorari, supersedeas, quo iuarranto7 mandamus, and all other remedial and original writs, which are grantable by judges at the common lawr. — Code of 1876, § 658. Circuit judges have authority to grant writs of prohibition, with certain limitations, which we will hereafter consider. And when such writ is ordered, it will not do for inferior jurisdictions, which its mandate restrains, to speculate about the sufficiency of the petition, or the averments on which it is awarded. Such practice would be subversive of civil order, and should not be resorted to. The laws make ample provision for the correction’of the errors, which will be committed in the administration of justice. It would lead to confusion, if not to anarchy, if injunctions, and other mandatory or restraining orders, issued by courts having authority to issue such orders, could be resisted and disobeyed, on the plea that the writ had been granted on insufficient averments. Public order, legal subordination, and the repose of society require that error be corrected by legal methods. — Ex parte Walker, 25 Ala. 81; Ex parte Greene and Graham, 29 Ala. 52; Ex parte Hamilton, 51 Ala. 62; Ex parte Brown, 58 Ala. 536. We do not think the present record presents a case for prohibition; and the rule nisi must be discharged. — See Ex parte Greene and Graham, supra.

We have said above that the rulings and orders of the Board of Revenue, if regular in form, cannot be revised or reversed in the Circuit Court. If, however, the board should make such order, and fail to make their record show they had conformed to legal requirements, certiorari would lie to the Circuit Court, where the proceedings would be- quashed. 1 Brick. Big. 888.

But the petition prays for a mandamus as well. It is shown above that, under the order of the circuit judge, granted in vacation, the clerk issued a peremptory prohibition in the first instance. The practice in such cases is settled in Ex parte Ray & DeFoe, 45 Ala. 15 ; opinion by Peck, C. J. In that case, unlike this, the judge of probate, who was restrained by the writ of prohibition, was proceeding in a matter over which he had no jurisdiction. The court said : “Let us now inquire whether the judge of the Circuit Court properly issued the writ of prohibition, made an exhibit to the said petition of Ray & BeEoe. Could he do this in vacation ? We are of opinion he could not. . . Circuit judges, as such, may grant writs of certiorari, supersedeas, quo warranto, mandamus, and all other remedial and original writs which are grantable by judges at the common law. We do not understand that judges at the common law issued writs of prohibition in vacation. . . In this country, the necessity of cases may require the application for this writ to be made in vacation, but the writ itself should only be issued in term time. When the application is made in vacation, a rule to show cause should first be issued, returnable to the next term of the court, and this rule should be served upon the judge, or court, and the parties to be affected by it. Without pursuing this question, enough has been said to show that the circuit judge erred in issuing the writ of prohibition ih this case, in the first instance, in vacation, and without notice to either the judge of the Probate Court, or the parties to be affected by it.” This court, in that case, made an order as follows : “ Let the proceeding before the circuit judge be reversed back to the petition, and the clerk of this court will issue a writ, in the nature of a mandamus, to the said circuit judge, commanding him to set aside the said writ of prohibition heretofore granted by him, and, in the stead thereof, to issue a rule to the probate judge to show cause why a writ of prohibition should not issue.” — See, also, Ex parte Keeling, 50 Ala. 474.

The case of Ex parte Ray & DeFoe, supra, is precisely in point. It results, that the judge of the second judicial circuit erred in granting the writ of prohibition, in vacation, and in the first instance. The difference between the former case and this is, that in that case, tbe petition to the circuit judge presented a case which justified and called for a writ of prohibition. In this, tbe petition does not make a case of error, which the Circuit Court can redress. No relief should have been granted on tbe petition as presented, and its prayer should have been denied. A writ, in the nature of a mandamus, is awarded, commanding tbe judge of tbe Circuit Court of Autauga to set aside tbe said writ of prohibition, heretofore granted by him, and to reverse his action back to the filing of tbe petition.

The costs are adjudged against tbe said John B, Simpson.