Ex parte Washington
| Decision Date | 13 May 1915 |
| Docket Number | 837 |
| Citation | 68 So. 686,13 Ala.App. 609 |
| Parties | Ex parte WASHINGTON. |
| Court | Alabama Court of Appeals |
Appeal from Tuscaloosa County Court; H.B. Foster, Judge.
Habeas corpus by Mandy Washington to secure her discharge from imprisonment. From an order denying the discharge, petitioner appeals. Affirmed.
Wright & Fite, of Tuscaloosa, for appellant.
Brown & Ward, of Tuscaloosa, for appellee.
The appeal is from an order of the judge of the Tuscaloosa county court declining to discharge the petitioner, appellant, on habeas corpus. Her alleged right to a discharge was predicated in the petition upon the ground that the judgment of conviction under which she was restrained of her liberty was null and void, in that P.B. Traweek, who rendered the judgment, while acting as recorder of the city of Tuscaloosa in a case wherein he was trying the petitioner for the violation of a municipal ordinance, "was," in the language of the petition, "wholly without power or authority to act as recorder, *** but was a usurper and intruder, whose act was not a judicial act authorizing the petitioner's imprisonment."
From the agreed statement of facts, upon which the habeas corpus petition was tried, it appears that said Traweek was exercising the duties of recorder under a temporary appointment from the president of the board of commissioners of the city of Tuscaloosa, who in making the appointment was acting under the power and authority of the following ordinance:
Such power and authority is fully set forth and defined in sections 1213, 1215, 1216, 1221, 1223, and 1224 of the Political Code of Alabama.
The petitioner--though, if she had, that fact would not, as seen from the authorities hereinafter cited, have changed the result--raised no objection, as the agreed statement of facts recites, in the municipal court to the power and authority of said Traweek, who was so acting as recorder under such appointment, and holding court at the usual time and place for holding the recorder's court in said city, to try her case; but from his judgment of conviction therein she appealed to the circuit court, and later, before the trial of the appeal, she dismissed it upon the assumption that the judgment appealed from was void and would not support an appeal, and sued out the present writ of habeas corpus setting up for the first time the lack of power and authority in said Tra-week to exercise the jurisdiction of a recorder.
She now insists that his appointment as recorder was a nullity because, as she asserts, the said ordinance of the city commissioners, investing one commissioner with the authority to appoint a temporary recorder, was void, in that it undertook to delegate to one commissioner the authority to exercise a power--the appointment of an officer--which, it is urged, could not be delegated, and which, if it could be exercised at all, could be exercised only by the commissioners sitting as a board or body.
However this be, upon which we need express no opinion, it can avail the appellant nothing. Traweek was certainly not a usurper (23 Am. & Eng.Ency.Law [[2d Ed.] 327, C), but was a de facto recorder, holding the court and exercising the duties functions, and jurisdiction of such office under color of right, at a time and place when and where such court could be legally held, and his judgment of conviction...
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Williams v. City of Birmingham
...question presented was whether or not a city convict is deemed to have been serving his sentence while on parole. In Ex parte Washington, 13 Ala.App. 609, 68 So. 686, we find the following: 'If the ordinance was void, there are authorities which hold that petitioner could get the benefits o......