Ailstock v. Page

• Decision Date: 19 April 1883
• Citation: 77 Va. 386
• Parties: AILSTOCK v. PAGE AND ALS.
• Court: Virginia Supreme Court

77 Va. 386

AILSTOCK v. PAGE AND ALS.

Supreme Court of Appeals of Virginia.

April 19, 1883

This is a case of prohibition brought in this court as a court of original jurisdiction. The object of the petitioner was to have this court award its writ to prohibit the circuit court of Rockbridge county from taking, upon a writ of error and supersedeas awarded to the contestants, W. N. Page and others, jurisdiction to review the judgment of the county court of said county, rendered January 2d, 1883, granting to the petitioner, Charles P. Ailstock, a license to keep an ordinary and sell ardent spirits at Goshen, in said county.

Opinion states the remaining facts.

F S. Blair for plaintiff.

First. The circuit judge had no right to grant an appeal, or writ of error and supersedeas in this case, and his proceedings in so doing are coram non judice and null.

See exparte Yeager, 11 Grat. 655; Gorrell v. Culpeper, 20 Grat. 519; French v. Noel, 22 Grat. 454.

Second. Act of March 6, 1882, amending act of March 3, 1880, and substituting " " may" for " shall," grants " an authority coupled with a discretion, which does not admit of its being guided or superseded by the orders of any superior or appellate tribunal," except in the case specially provided in the statute, of an appeal by the party to whom a license is refused.

Third. Prohibition is the proper remedy in this case to arrest unauthorized acts of jurisdiction.

Wm. A Anderson, and Wm. J. Robertson, for the respondents.

First. Respondents being interested in valuable improvements near Goshen, and deeming the establishment of an ordinary there fraught with injury to their interests, were entitled to become parties and oppose petitioner's application for license to establish same.

See Leighton v. Maury, 76 Va. 865.

Second. Rightfully made parties to the proceedings and aggrieved by the judgment of the county court granting such license respondents were entitled under Code 1873, chapter 178 section two, upon a proper case presented, to sue out a writ of error and supersedeas to that judgment.

Third. All the proceedings complained of were in accordance with the construction placed by this court, upon the present license law, and the principles settled by its decision in Leighton v. Maury, supra.

Fourth. The act of March 6, 1882, raises no question of the appellate jurisdiction of the circuit court in the proceeding complained of, but makes clearer the rightfulness of its exercise.

Fifth. In that case this court held, that in the act of March 3, 1880, the words " shall " and " may " were synonymous.

Sixth. There is now no express warrant of law for granting a license to keep an ordinary, and county courts have no jurisdiction so to do.

The license issued was unwarranted, in that it authorized Ailstock to keep said ordinary as provided by section seventy-four of act approved March 27, 1876, which had been repealed, particularly by the act approved April 22, 1882.

OPINION

HINTON, J.

The application of Charles P. Ailstock for license was opposed by W. N. Page, Henry A. Goodloe, and The Iron and Steel Works Association of Virginia (limited), who upon their motion, by counsel, were admitted as defendants. The court, after hearing the evidence on both sides, was fully satisfied that " the applicant was a fit person and the place suitable and convenient" and granted the license.

Subsequently, however, the said Page, Goodloe, and The Iron and Steel Works Association of Virginia (limited), applied to the Hon. Wm. McLaughlin, judge of the circuit court of Rockbridge county, for a writ of error and supersedeas to the judgment of the county court; which was awarded on the 16th day of January, 1883; whereupon, the petitioner, Ailstock, presented his petition to this court praying for a writ of prohibition to be issued to the said Page, Goodloe, The Iron and Steel Works Association of Virginia, and the said Wm. McLaughlin, judge of the circuit court of Rockbridge, " to prohibit them from proceeding further upon the said supersedeas, so that the order of the county court shall continue in full force and effect as if said supersedeas had not been awarded."

Accordingly, on the 12th day of February, 1883, a rule was entered, that the said judge, Page, Goodloe, and the Iron and Steel Works Association of Virginia, should be summoned to show cause why a writ of prohibition should not be issued according to the prayer of the petition. This rule was answered by both Goodloe and Page.

In these answers and the arguments at the bar of this court, several interesting questions are raised, only one of which, however, in the view we take of the case, is it necessary for us to decide.

That question is this, did the circuit court have jurisdiction to award a writ of error and supersedeas in this case?

From a comparison of the second section of the act of March 3, 1880 with the act amendatory thereof, approved March 6, 1882, it will be seen that the only change made in that section is the substitution of the word " may" for the word " " shall," so that the section, as amended, reads as follows: " If the court be fully satisfied upon hearing the testimony for and against the application, should any be offered, that the applicant is a fit person, and the place of business suitable and convenient, it may grant such...