Ex parte Homewood Dairy Products Co., 6 Div. 826.

• Court: Supreme Court of Alabama
• Writing for the Court: FOSTER, Justice.
• Citation: 241 Ala. 470,3 So.2d 58
• Parties: EX parte HOMEWOOD DAIRY PRODUCTS CO.
• Docket Number: 6 Div. 826.
• Decision Date: 13 June 1941

3 So.2d 58

241 Ala. 470

EX parte HOMEWOOD DAIRY PRODUCTS CO.

6 Div. 826.

Supreme Court of Alabama

June 13, 1941

Rehearing Denied June 30, 1941. [3 So.2d 59] [Copyrighted Material Omitted] [3 So.2d 60]

[241 Ala. 471] Rosenthal & Rosenthal, Walter S. Smith, and Walter S. Smith, Jr., all of Birmingham, for petitioner.

[241 Ala. 472] Thos. S. Lawson, Atty. Gen., Wm. H. Loeb, Asst. Atty. Gen., and Chas. B. Aycock, of Birmingham, for respondent.

FOSTER, Justice.

This is a petition addressed to this court for mandamus to require the judge of the Circuit Court of Jefferson County to place on the jury docket a cause which is in that court on certiorari from an order of the Alabama State Milk Control Board.

The questions here involved are: (1) Whether by general law a right to trial by jury exists in the circuit court on a trial brought to that court by certiorari provided for in the Act of March 20, 1939, General Acts 1939, page 267, Code 1940, T. 22, §§ 205-231, creating the Alabama Milk Control Board; and (2) If there is no such right to jury on that sort of trial, whether the act is thereby rendered unconstitutional in certain respects.

The right of review by certiorari is provided in section 22 of the Act (see Title 22, section 226, Code of 1940). That feature of it provides that on the trial in the circuit court on certiorari, the cause shall be considered, (1) on said petition for certiorari, (2) on the record of said board, and (3) on the answer filed by said board (to the petition for certiorari), but no new or additional evidence shall be taken or heard by the court; and "all such cases * * * shall be heard by the court as speedily as possible * * * [and] upon [241 Ala. 473] final hearing, such courts shall have jurisdiction to reverse, vacate or modify the order complained of, if upon consideration of the issues before the court, the court is of the opinion the order is unlawful or unreasonable. Nothing in this section shall be construed as depriving a defendant in a criminal prosecution of a trial by jury, arising out of the violation of any provisions of this chapter."

We will first consider whether the law otherwise provides for a trial by jury on such a review. Petitioner relies in part upon section 8596, Code of 1923 (Title 7, section 264, Code of 1940) to sustain his right to a jury trial of the case on certiorari taken as above authorized. That provision of the law authorizes a trial by jury in the circuit court on appeal or certiorari from judgments of justices of the peace or other inferior courts.

Section 22 of the Act of 1939, supra, does not prescribe the manner of trial other than as stated above. [3 So.2d 61]

The case of Ex parte Sumlin, 204 Ala. 376, 85 So. 810, dealt with section 8596, Code of 1923, as it then appeared in the Act of 1915, page 939, and held that it had no application to an appeal to the circuit court from a judgment of the probate court on a will contest. The appeal was taken under section 2855, Code of 1907 (see, Title 7, section 775, Code of 1940). The provision for adjudging the case on appeal set out in that section is similar to that now under consideration. The court held that the Act of September 28, 1915 (General Acts 1915, page 939; section 8596, Code of 1923, supra) did not affect the question of the right of a trial by jury on appeal from the probate court. The basis of the holding there declared has direct application here. The provision in that statute for a trial by jury in the circuit court removed by certiorari from the justice of the peace or other inferior courts evidently refers to statutory certiorari triable de novo; and the inferior courts were those to which statutory certiorari has application with trial de novo. Birmingham Realty Co. v. City of Birmingham, 205 Ala. 278, 87 So. 840. In the Sumlin case, supra, there had been a will contest in the probate court under section 6196 of the Code of 1907, Code 1940, Tit. 61, § 52, which provided for a trial by jury in that court. The court made note of that fact in construing section 2855 of that Code (Title 7, section 775, Code of 1940) as not requiring a jury trial, and on that ground differentiated it from Montgomery Street Rwy. Co. v. Sayre, 72 Ala. 443.

The latter case was an appeal from a condemnation proceeding in the probate court, where the statute provided that on such appeal "the same proceedings shall be had as in ordinary cases of appeal from the Probate to the higher courts of this State." Code 1876, § 1838. The contention was that on appeals in ordinary cases from the probate courts, there was no provision for jury trials, but that since Article 14, section 7, Constitution of 1875 (section 235, Constitution of 1901) provided that on appeals in such cases either party shall have the right to a jury trial, the court would by a stretch of interpretation hold that the act in question relates to the proceedings preliminary to taking the appeal, the mode of doing so to conform to the usual ordinary proceedings in such cases, but when it reaches the circuit court, the Constitution intervenes and confers the right of a trial by jury in no uncertain terms.

Such a situation is not here presented unless the trial of the certiorari provided for in the Act of 1939, supra, presents a case where a jury trial is a constitutional right, which we will discuss later in this opinion.

Petitioner also relies upon principles stated in City of Huntsville v. Pulley, 187 Ala. 367, 65 So. 405, 406, reaffirmed in Ex parte City of Florala, 216 Ala. 351, 113 So. 312. That was an appeal from a municipal street improvement assessment to the circuit court for trial of the issue of whether the property was enhanced in value as declared in the assessment. The statute, Code 1907, § 1394, provided that such appeal "may be tried on the...