Ex parte State

Decision Date19 April 1917
Docket Number6 Div. 410
Citation75 So. 327,200 Ala. 15
PartiesEx parte STATE ex rel. MARTIN, Atty. Gen.
CourtAlabama Supreme Court

Petition by the State of Alabama, on the relation of the Attorney General, directed to the Honorables John H. Miller, John C Pugh, and Charles W. Ferguson, as Judges of the City Court of Birmingham, requiring them to vacate an order of injunction issued by them on a former occasion. Writ awarded.

William L. Martin, Atty. Gen., and Samuel D. Weakley, of Birmingham for appellant.

Forney Johnston, of Birmingham, for appellee.

McCLELLAN J.

The writ of prohibition is the appropriate remedy where the object of its restraint is without jurisdiction to exercise the judicial power over the subject-matter or the parties and there is no other adequate remedy. Ex parte State, etc. 150 Ala. 489, 43 So. 490, 10 L.R.A. (N.S.) 1129, 124 Am.St.Rep. 79.

When the Supreme Court of this state is not in actual session, a justice thereof may entertain a petition for the supervisory writ of prohibition (Const.1901, § 140); may, if he so concludes upon its consideration, issue an order to the officer or tribunal, the jurisdiction of which is thereby questioned, to make answer to the petition and a return thereof to the court by a day fixed; and restrain the officer or tribunal from effecting the power or authority sought to be exercised pending final determination by the Supreme Court of the inquiry thus instituted. It is the duty of those affected or governed by such order to observe it in all respects. This authority and practice has been often exerted by a justice when the court was not in actual session. It was availed of in Ex parte State, etc., supra, and reference to it may be found in the opening sentences of the opinion. There is a continuous period of approximately 6 weeks in February and March of each year, and a continuous period of approximately 90 days in July, August, and September of each year, when the court is not in actual session, the latter period being between terms, though the justices are generally at their duties at their chambers. If there was no power otherwise than in the court itself to maintain the status quo pending final determination by the court of the right of the writ sought, it is manifest that the supervisory power (Const. § 140) residing in the court would be at times wholly unavailable, unless the court should remain in actual or repeatedly convene in special session; whereas, the statutes governing the sessions of this court fix terms therefor and interims between terms thereof. The established practice and recognized authority in such circumstances were properly observed and exercised in this instance, this court not being in session when the justice made his order on July 18, 1916. The report of the appeal will reproduce the order made on July 18, 1916.

L.W. Scoville filed an original bill in the Birmingham city court against the sheriff of Jefferson county, T.J. Batson, praying the issuance of "an order restraining and enjoining the said respondent as sheriff, *** and his deputies and all other persons having the right to make arrests or institute prosecutions, from arresting this complainant, his agents, servants, and employés, for selling or keeping said Ambrosia, or from seizing the same, or in any other manner interfering with his rights of property therein, until a hearing of this cause, and that upon a final hearing of this cause that your honors will make such injunction or restraining order perpetual," and for general relief. The injunction was issued as prayed. The petition for the writ of prohibition, presented by the state, on the relation of its Attorney General, seeks to annul the injunction thus issued by the judges of the city court on the averred ground that, since neither the judges nor the city court had any jurisdiction to order issued or to issue restraining process against the sheriff and others in such circumstances, the injunction issued and ordered issued was null and void. The fundamental theory of the original bill is that the beverage, Ambrosia, is not a beverage within the penal prohibitory laws of this state, enacted to suppress the evils of intemperance and to promote temperance in Alabama.

While the original bill probably does not certainly exclude the beverage in question from every possible character of beverage upon which the statutes of this state visit...

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21 cases
  • State v. Grayson
    • United States
    • Alabama Supreme Court
    • 27 Junio 1929
    ... ... If the ... statute does not give the circuit court jurisdiction to ... review a judgment of an inferior court by appeal, any action ... of the circuit court on appeal will be arrested on a timely ... application to this court. Ex parte State ex rel. Martin, 200 ... Ala. 15, 75 So. 327; Ex parte State ex rel. Tillery, 217 Ala ... 656, 117 So. 294; Ex parte Smith, 23 Ala. 94 ... Has the ... circuit court transcended its jurisdiction in declining to ... dismiss the appeal from the probate court, and in proposing ... ...
  • State v. Love
    • United States
    • Florida Supreme Court
    • 14 Febrero 1930
    ... ... jurisdictions by such methods as may be necessary and ... appropriate, to the end that the jurisdiction of the courts ... of the state may not be exceeded in such sort as to impair or ... take away such immunity from suits. It was in substance so ... held in Ex parte State ex rel. Martin, Attorney General, 200 ... Ala. 15, 75 So. 327 ... It is ... further contended that the state road department had no right ... to question the constitutionality of said [99 Fla. 341] ... section 4, in the court below, without showing that the ... members of the ... ...
  • Blount v. Sixteenth St. Baptist Church
    • United States
    • Alabama Supreme Court
    • 30 Junio 1921
    ...threatened is merely the vexation of frequent arrest and punishment for crime (Burnett v. Craig, 30 Ala. 135, 68 Am.Dec. 115; Ex Parte State ex rel. Martin, supra; Brown v. Birmingham, 140 Ala. 590, 37 So. Old Dom. Tel. Co. v. Powers, 140 Ala. 220, 37 So. 195, 1 Ann.Cas. 119; Pike County Di......
  • Caudle v. Cotton
    • United States
    • Alabama Supreme Court
    • 15 Abril 1937
    ...in each case must be controlling. Brown v. Mayor and Aldermen of Birmingham, 140 Ala. 590, 37 So. 173. Perhaps the case of Ex parte State, 200 Ala. 15, 75 So. 327, furnishes an illustration more nearly in point to the case than any we have seen, not now considering Higdon v. McDuff (Ala.Sup......
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