Benners v. State
| Decision Date | 20 December 1899 |
| Citation | 26 So. 942,124 Ala. 97 |
| Parties | BENNERS, JUSTICE OF THE PEACE, v. STATE EX REL. HEFLIN ET AL. |
| Court | Alabama Supreme Court |
Appeal from criminal court, Jefferson county; Samuel E. Greene Judge.
Mandamus by the state, on relation of H. P. Heflin and another against I. H. Benners. Writ awarded, and defendant appeals. Affirmed.
This is a mandamus proceeding begun in the name of the state on the information of H. P. Heflin, county solicitor for Jefferson county, Ala., and Frank Leslie, a citizen of said state and county, alleging, in substance, that the said Frank Leslie had made and presented to I. H. Benners, a justice of the peace for beat 37 in Jefferson county, an affidavit, made by him, stating that in his opinion Thomas G. Hewlett, within the corporate limits of the city of Birmingham, and within said precinct or beat, had sold what is commonly known as a "pool," or made what is commonly known as a "book," upon a horse race, in order to procure the issuance of a warrant of arrest for the said Thomas G Hewlett, returnable to the inferior criminal court or police court of Birmingham; that the said I. H. Benners had refused and declined to take jurisdiction of the cause, or to examine complainant and his witnesses, on the ground that the act under which said affidavit was made, to wit, the act approved February 5, 1897, entitled "An act to prohibit bookmaking or pool selling on horse racing and other forms of gambling," was unconstitutional or invalid. The petition further stated, on information and belief, that the averments made in said affidavit were true, and that said offense had been committed by the said Thomas G. Hewlett; that the said I. H. Benners had acted wrongfully in refusing and declining to issue said warrant of arrest. And the petition prayed that a rule nisi might be issued, commanding the said I. H Benners to appear before the judge of the criminal court of Jefferson county to show cause why a writ of mandamus should not issue to him, as such justice of the peace, requiring him to take jurisdiction of said proceeding; to examine complainant, the said Frank Leslie, and such witnesses as he might propose, on oath; to take their depositions in writing; and if he should be reasonably satisfied from such depositions that the offense complained of had been committed, and that there was a reasonable ground to believe that said Thomas G. Hewlett had been guilty thereof, to issue a warrant of arrest for the said Thomas G. Hewlett, returnable to said inferior criminal court of Jefferson county. The defendant appeared and demurred to the petition on the grounds that the act in question was unconstitutional and was invalid, as having been repealed. The demurrer was overruled by the court, and, the defendant declining to plead further,-the averments of the petition being shown to be true,-a peremptory writ of mandamus was ordered to be issued in accordance with the prayer of the petition. This appeal is prosecuted by the defendant from the judgment awarding the mandamus, and the rendition of such judgment is assigned as error.
White & Howze and B. B. Boone, for appellant.
Cabaniss & Weakley, for appellee.
Motion is made to dismiss this appeal on the ground that there is no real controversy between the parties, and that the judgment appealed from is therefore void. Without wishing to abate the salutary policy of the law which reprehends and refuses effect to fictitious suits, we cannot apply it here. The affidavits show no more than that the mandamus proceedings were instituted and conducted in an amicable way, with the view to speeding the decision of a controversy involving real parties and interests. Such a motive is not offensive to legal policy or principle. Lord v. Veazie, 8 How. 251, 12 L.Ed. 1067. Before the appellant, as a justice of the peace, a prosecution was begun by affidavit, charging designated persons with a criminal offense. The justice disputes the validity of the statute purporting to create the offense, and upon that ground alone refuses to issue his warrant of arrest. The act in question was approved February 5, 1897, and is entitled "An act to prohibit bookmaking or pool selling or horse racing and other forms of gambling." As to any conflict between its provisions and those of the Code of 1896, the act which adopts the Code must be taken as the last expression of the legislative will. The last-mentioned act was approved February 16, 1897, and expressly provides against the repeal of acts passed at that legislative session, with the exception of certain amendatory laws incorporated in the Code. This is not an attempt at...
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...N. W. 1081, 51 L. R. A. 33;State ex rel. McGovern v. Williams (Wis.) 116 N. W. 225;State ex rel. Harris v. Laughlin, 75 Mo. 358;Benners v. State, 124 Ala. 97, 26 South. 942; 1 Bishop's Crim. Proc. par. 1402. In State ex rel. McGovern v. Williams, supra, the question presented was whether th......
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State v. Greenetrack, Inc. (Ex parte State)
...ago held that a writ of mandamus may be used to require the issuance of a warrant under such circumstances.“In Benners v. State ex rel. Heflin, 124 Ala. 97, 26 So. 942 (1899), this Court held that mandamus will lie to compel the issuance of an arrest warrant where the magistrate refused to ......
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State ex rel. Embry v. Bynum, 7 Div. 677.
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