Ex parte Campbell

• Decision Date: 29 June 1901
• Citation: 130 Ala. 171,30 So. 385
• Parties: EX PARTE CAMPBELL ET AL.
• Court: Alabama Supreme Court

30 So. 385

130 Ala. 171

EX PARTE CAMPBELL ET AL.

Supreme Court of Alabama

June 29, 1901

Application by John A. Campbell and others for the issuance of a writ of mandamus. Writ denied.

It was averred in said petition that the petitioners had been duly and legally appointed a board of court-house commissioners and charged with certain duties and invested with certain powers as such commissioners, under and by virtue of an act of the general assembly of Alabama approved March 5, 1901 entitled "An act to provide for the removal of the county seat of Shelby county from Columbiana to Calera, to authorize an issue of county bonds, to raise money for the erection of a court house and jail, and to provide for the erection of such buildings at Calera, to provide for paying the principal and interest on said bonds, to appoint a board of court house commissioners and prescribe their duties and compensation"; that, after having qualified and entered upon the discharge of their duties as such court-house commissioners, the petitioners proceeded to advertise for bids looking to the issuance of the bonds authorized by said act; that on April 2, 1901, A. P. Longshore, who is the judge of probate of Shelby county, and a member of the court of county commissioners, made application to, and obtained from Hon. G. K. Miller, judge of the city court of Talladega, a writ of prohibition, which was on said day served upon the petitioners. The application therefor and the writ itself were attached as an exhibit to the petition, and the substance of them is sufficiently stated in the opinion. The petitioners then averred that the suing out of the said writ and the service thereof upon them has and will greatly delay them in the proper discharge of their duties as such court-house commissioners under said act, and, if permitted to remain in force, will cause great and irreparable injury to the petitioners and the public; that the action of said judge of the city court of Talladega in granting said prohibition was in excess of the power or jurisdiction conferred upon him by law, and was invalid, and without authority of law. The prayer of the petition was "that a rule nisi be issued and served upon the said G. K. Miller judge of said city court of Talladega, commanding him to be and appear before this honorable court on a day to be named in said order, then and there to show cause, if any, why the writ of mandamus or other appropriate order shall not issue to compel him to vacate said order, and that on return thereof a peremptory writ of mandamus or other appropriate writ issue, directed to said G. K. Miller, judge as aforesaid, commanding him to set aside and vacate said order, and that petitioners pray for all such further or different orders as may be meet and proper in the premises." The facts relating to the issuance of the writ of prohibition by the judge of the city court of Talladega are sufficiently stated in the opinion. The respondent, G. K. Miller, demurred to the petition upon the following, among other, grounds: (1) It does not appear from said petition that application for the relief thereby sought had been made to the court or judge below and refused. (2) Under act of the general assembly (See Acts 1894-95, p. 1219), the judge of the city court of Talladega had authority to issue the said rule nisi in prohibition, and his order should not be vacated by mandamus from this court. (3) Petitioners have a full, complete, and adequate remedy by appeal. (4) It appears from the allegations of fact in the petition that petitioners are not entitled to a peremptory writ of mandamus as prayed for. (5) Injury to the public is no ground for relief for petitioners. (6) It is not shown in what respect the public will be greatly or irreparably injured. The respondent filed an answer, in which he admitted the issuance of the writ and the facts relating thereto as averred in the petition, but denied that the issuance thereof and the prohibition granted thereby would greatly hinder or delay the petitioners in the proper discharge of their lawful duties, or would cause great or irreparable injury to the petitioners or to the public. He further denied that in granting said writ of prohibition he acted in excess of the power or jurisdiction conferred upon him by law, but averred, to the contrary, that, in issuing said writ, he was exercising the jurisdiction expressly conferred upon him by statute. It was further averred in said answer that no application and motion had been made to the said respondent seeking to have said order vacated; and, further, that on April 5, 1901, the petitioners made a motion in the circuit court of Shelby county, in which court the rule nisi which had been issued by the respondent was made returnable, to quash said writ, and that said motion, and the proceedings thereon, were still pending in said court; and, further, that the circuit court of Shelby county had jurisdiction of said cause at the time of the filing of the application for mandamus in this court.

Martin & Bouldin, for petitioners.

Cecil Browne and Dryer & Webb, for respondent.

TYSON J.

Manifestly, notwithstanding the petition of Longshore and others avers that these petitioners are usurping 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 qo warranto. Code, § 3417 et seq. 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 and member of, Thos. C. 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 next 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 Thomas 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 exercise any of the duties of such office; and that they, the said John A. Campbell, Thomas C. McKibbon, and Henry C. 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 instanter 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 Shelby 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, ne exeat 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 jurisdiction of them; or he may,...