Ex parte Campbell

130 Ala. 171

• Court: Supreme Court of Alabama
• Decided: November 15, 1900
• Status: Published

Opinion

TYSON, J.

Manifestly, notwithstanding the petition of Longshore and others avers that these petitioners are usurping the office and powers as court house commissioners without authority of law, and prays upon final hearing that they be ousted from their pretended offices, it is a petition or application for a writ of prohibition against them from doing the several acts and things which they claim the right to do under and by virtue of a certain act of the General Assembly approved March 5, 1901.—Ex parte Roundtree, 51 Ala. 42. It is clearly not an action in the nature of a quo warranto. § 3417 et seq. of Code. Its further prayer is, “that some judicial officer with lawful authority grant a rule nisi and issue an alternative writ prohibiting said John A. Campbell from acting as president of and member of, .Thos. O. McKibbon and Henry C. Moss from acting-as members of, and the three, jointly and severally, from acting as such board of court house commissioners, * * * and to prohibit them jointly and severally from doing any of the matters and things enjoined upon or permitted by them to be done, under the terms and provisions of the said invalid act; * * * and if mistaken in the relief hereinabove prayed' for, they pray that such further and general relief will be granted and adjudged to them by this court as under the pleadings and proof, upon final hearing hereof, may to this court seem meet and proper,” etc. It is addressed to the Honorable Circuit Court of Shelby County and on the 2d day of April, 1901, was presented to the Honorable G. K. Miller as judge of the city court of Talladega for the preliminary orders and writs prayed for. On the same day, Judge Miller .rendered this judgment: “It is, therefore, considered, ordered and adjudged by me as [such] judge of the city court of Talladega, that the rule nisi, prayed for in said petition, be and the same is hereby granted. And the said John A. -Campbell be and he is hereby ordered to appear at the nest term of the circuit court of Shelby county, Alabama, and show by what authority he acts as president and member of a board of court house commissioners of -said county of Shelby, or exercises any of the duties of -such office"; that said Thos. C. McKibbon and Henry C. Moss also appear at the next term of -said circuit court of Shelby county, Alabama, and show by what authority they act as members- of a board of court house commissioners, or exercie any of the duties of such office; and that they, the said John A. Campbell, Thomas -C. McKibbon and Henry 0. Moss, jointly and severally, be and they are prohibited from acting as such board of court house commissioners, from issuing and selling said bonds described in said petition and any such bonds, tearing down or otherwise injuring the court house at Columbiana, Alabama, and jointly and severally from doing any of the matters and things enjoined upon or permitted by them to be done under the provisions of said act, unless they appear in said circuit court of Shelby county, Alabama, at the next term thereof and show good cause why they should not be so prohibited. It is further considered, ordered and adjudged that the sheriff of Shelby county, or any other lawful officer, serve instant&r a copy of this order and of the foregoing verified petition upon each of the said respondents, John A. Campbell, Thos. C. McKibbon and Henry C. Moss, and make due return thereof to the said circuit court of Shel'by county, Alabama, according to law.”

Campbell and others, against whom this writ was issued, by their petition ask us to issue a writ of mandamus or other remedial writ requiring Judge Miller to vacate his order or judgment because the granting of it was in excess of the power or jurisdiction conferred upon him by law and was without authority of law. In response to a rule nisi Judge Miller has appeared and demurred to and answered the petition. The cause is before us on a submission upon these pleadings.

By express provision of the act establishing the city court of Talladega, the judge of that court is clothed with the “authority to issue writs of injunction, prohibition, no cxeci-t, and all other writs which now or may hereafter be lawfully issued by judges of the circuit court and chancellors of this State.” Nor is he confined in the exercise of this authority to the issue of such writs returnable to his own court or to the circuit or chancery court of his own county, but he may, as circuit judges and chancellors can, in vacation or at chambers, issue such writs returnable into any court of the State having jiirisdiction of them. Or he may, as was done here, issue a rule nisi returnable to any circuit court, in the State This proposition is so forcibly and clearly decided in the case of E. & W. R. R. Co. v. E. T. V. & G. R. R. Co., 75 Ala. 275, construing an enact-meut containing the same provision, as here, that we quote it on that point: “It is time the court is organized for the county of Dallas; that is the locality in which it- dwells, and to which its jurisdiction is confined. But the jurisdiction of the court is distinguishable from the authority of the judge to grant remedial writs, which are mere auxiliaries to the exercise of jurisdiction, and which, when returned to the court to which they are issued, are subject to its control, and are temporary in their operation. It is a well defined legislative policy, intended to expedite the administration of justice, to confer on all judicial officers, of the jurisdiction and dignity of the judge of the city court, authority to issue, or to order the issue of such writs, returnable to any court of the State having jurisdiction of them. And it was in view of this policy, that, in express terms, the authority to issue such writs was conferred upon the judge of the city court, and not left to be derived by implication from the general grant of jurisdiction and power.” See also Ex parte Sayre, 95 Ala. 288; Cofer v. Sehcning, 98 Ala. 388.

It is clear that Judge Miller had jurisdiction to issue the rule nisi.

But it is contended that it was improvidently granted by him, and, therefore, this court should by mandamus compel its vacation. This, we are asked to do, notwithstanding Judge Miller liad jurisdiction to issue the rule and notwithstanding section 431 of the Code confers the right of áppeal upon petitioners from his judgment ; and we might add, this we must do notwithstanding the circuit court of Shelby county, to which the application was addressed and preliminary writ made returnable, acquired exclusive jurisdiction over the proceeding. The cases of Ex parte Boothe, 64 Ala. 312, Ex parte Keeling, 50 Ala. 474 and Ex parte Ray and DeFoe, 45 Ala. 15, are relied upon to support this contention. In each of these cases, the writs issued were peremptory in the first instance, and were issued in vacation without notice. The order of the judge being-made without authority, and it was so held in each of them, was void. Being void, of course, it would not have supported an appeal to this court. To this extent, and -only to this extent, can they be regarded as authority for the insistence that mandamus is the proper remedy to revise the action of the judge in issuing the wilts of prohibition; and it is to'this limited extent, they are authority for the proposition that mandamus will lie to -compel the. vacation of a writ of prohibition which has been impiovidently granted. If the rule nisi is improvidently granted -because of imperfections in the averments of facts in the petition, or -f-or the reason that the facts averred do not make a case entitling the petitioner to it, mandamus is not the proper remedy to revise the order of the judge, as we shall show later, but an appeal should he resorted to.

Sectioh 431 reads as follows: “Appeals may be taken to the Supreme Court from the judgment of judges of the circuit and city courts on application for writs of certiorari, supersedeas, quo warranto, mandarnos and other remedial writs, upon plaintiff or defendant, giving security for the costs of appeal, approved by the judge trying the 'same, within thirty days from the day of the judgment; but such appeal shall not operate as a supersedeas of the judgment, unless bond with sufficient sureties be given by the appellant, payable to the appellee, in such sum -as the judge hearing the applica-cation shall require, conditioned to pay all damages, thereby sustained.” The learned codifier o-f the Code of 1876, in codifying the act, of which the above quoted section is a substantial copy, erroneously prefaced it “Appeals from denials of remedial Writs by circuit judge.” This erroneous preface was carried forward into the Codes of 1886 and 1896 in these words: “Appeals from denial of remedial writs.” These several prefaces were unwarranted by the title of the original act, which was “To allow appeals to the Supreme Court in certain cases,” as well as by the body of the enactment.

It cannot -be well doubted that a writ of -prohibition is a remedial writ. — High Extr. Leg. Rem., § 762; 19 Am. & Eng. Ency. Law (1st ed.), 263; Code, § 2825.

It seems to be conceded by petitioners that the -section of the Gode quoted above confers the right of appeal when the preliminary writ is denied. Indeed it has been so held in several cases.—Ex parte Grant, 53 Ala. 16; Dunn v. Court of County Revenues of Wilcox Co., 85 Ala. 144; State v. Crook, 123 Ala. 657. Bnt it is contended that if the rule nisi is awarded by the judge, the defendant in the application ha® no right of appeal under the statute, ¡áuch a construction is directly and palpably in violation of its plain words and to so hold would not only emasculate it, but would be an unauthorized judicial amendment of it, and this too in plain violation of its letter, spirit and policy. The language employed is, “Appeals may be taken, etc., upon plaintiff or defendant giving -security for costs, etc.; but such appeal shall not operate a® a supersedeas of the judgment unless bond with sureties be given by appellant,’’ etc; If the anile nisi is denied to the plaintiff on his application, no necessity exists for his giving a bond to supersede the order of refusal. So, then, the provision requiring bond to -supersede the judgment, if the appeal is limited to the plaintiff, was superfluous and meaningless. If the judge grants the rule and the defendant wishes to suspend its operation pending his appeal, the provision confers upon him the right to do so. Tliis was the purpose of the provision, which is clearly declared by its language. We entertain no doubt of the right of the petitioners to appeal from the order made by Judge Miller.

But it is said, if the right of appeal is conferred by section 431, it will not and cannot operate so -as to impair the right of this court to exercise its constitutional power of supervision by remedial writs. We do not understand that the statute has any such effect. It simply confers a right of appeal, and the question is, does the right -of appeal relieve the necessity for the exercise by this court of its constitutional authority? Or, to state the proposition in another form, will this court issue, a writ of mandamus in this case to correct an alleged erroneous decision of Judge Miller in issuing the -rule nisi which can be revised by appeal? Mandamus being an extraordinary legal remedy, it is never issued ■when there is another adequate remedy. — 3 Brick. Dig., 625, § 2. The universal doctrine is, that “mandamus will not lie, when there is a remedy by appeal or writ of error.” — 13 Ency. Pl. & Pr., 530, and note 2. This doctrine has prevailed in this State since the decision in the case of The State v. The Judge of the Orphans’ Court, 15 Ala. 740, down to the present time. The cases are too numerous to cite. Many of them can be found by reference to note 2 on page 530 of 13 Ency. PL & Pr., and brief of respondent’s counsel. The only one that we have been able to find, not in harmony with this universal doctrine, is the case of Ex parte Candee, 48 Ala. 386. Petitioner’s counsel, who have shown great diligence in their search for precedents, rely upon it and cite no other case. So we feel safe in making the statement that it is the only one which contravenes the general rule. This case has been twice repudiated by this court.—Ex parte Harris, 52 Ala. 87; State v. Tucker, 54 Ala. 205. It is true the dissent from it was upon another point. But upon the point here involved, there are many cases, since its decision, which practically overrule it, and it can no longer be regarded as an authority. See notably Ex parte Due, 116 Ala. 491; Ex parte Woodruff, 123 Ala. 99; Ex parte Farquhar & Son, 99 Ala. 375; Bickley v. Bickley, 129 Ala. 403. Furthermore, “the writ of mandamus is never issued to correct errors in, or to reverse, the judicial'action of a court. • By that process, inferior courts or magistrates, when they fail or refuse to do so, will he compelled to entertain and exercise jurisdiction. They will not he controlled in the manner of its exercise, nor directed as to what judgment they will render.”—Ex parte Graves, 61 Ala. 381; Ex parte Shaudies, 66 Ala. 134; Wilson v. Duncan, 114 Ala. 659. It is hardly necessary to make application of this principle to the present case. The purpose of this proceeding is so clearly an effort to have us correct, an alleged error in or to reverse, the judgment or order of Judge. Miller granting the rulé nisi, which, as we have shown, may be done on appeal, that it is unnecessary to say more on this point.

Nor will mandamus be granted to command an inferior tribunal to do that, which it could not legally do without such mandate.—The State v. The Judge, etc., supra.

After tlie rule nisi avus issued, it 'was tlie duty of Judge Miller to cause the application, together with his order thereon, to be filed in the office of the clerk of the circuit court of Shelby county, where the application is to " be heard. — Code, § 432. After he had acted upon the application and rendered his judgment, by force of the statute, lu; exhausted his jurisdiction and is wholly without authority to vary, alter or amend it. It then became a cause, pending in the circuit court of Shelby county, over which he has no jurisdiction Indeed, if he was judge of that court, he could not, in vacation, any more A-acate it, than he could strike down or otherwise A-acate or annul any other proceeding pending in that court.

It is of no consequence that the judgment or order granting the rule •nisi contains a prohibition against the defendants, these petitioners, from doing the acts or matters complained of in the ‘application until a final hearing of that cause. This Avould have been the effect of the rule nisi.—Ex parte Ray, 45 Ala. 20; 16 Encyc. Pl. & Pr. 1139. As the merits of the controversy invoh-ed in the prohibition proceedings are not before us, we must decline to express an opinion on any question involving that proceeding.—Ex parte Due, supra.

The rule nisi heretofore issued by us is -discharged, and the peremptory writ, of mamdarmis denied.