Goodwin v. McConnell

• Decision Date: 11 June 1914
• Docket Number: 742
• Citation: 187 Ala. 431,65 So. 788
• Parties: GOODWIN, Judge of Probate, v. McCONNELL.
• Court: Alabama Supreme Court

65 So. 788

187 Ala. 431

GOODWIN, Judge of Probate, v. McCONNELL.

No. 742

Supreme Court of Alabama

June 11, 1914

Appeal from Circuit Court, Fayette County; J.J. Curtis, Judge.

Petition by D.O. McConnell, as citizen and taxpayer of Fayette County for a writ of prohibition against E.P. Goodwin, as Judge of Probate in said county, to prevent the said Goodwin as such judge from proceeding to hear and determine a certain proceeding for the condemnation of petitioner's land for a county public road. From a judgment granting the writ respondent appeals. Reversed and rendered.

The right to the writ is rested upon the allegation that the condemnation proceedings in question were instituted under Local Acts 1911, p. 240, which is alleged to be unconstitutional and void in so far as it seeks to give the road supervisor of Fayette county the right and authority to condemn lands for road purposes; and that the road supervisor is proceeding to condemn said lands without the authority or consent of the commissioners' court of Fayette county. So much of said act referred to is as follows:

"Section 7. *** With the consent and advice of the road commission, such supervisor may *** secure or accept by donation or lease or purchase, or may proceed by condemnation in the name of Fayette county, Ala., under the laws of condemnation proceedings in the state *** all necessary rights of way for roads and bridges."

The act as a whole creates a road commission and a road supervisor and vests in them the full power and authority over public roads and bridges which is given to courts of county commissioners under the general laws; provides a more or less complete system and regulations for highway construction and improvement; and authorizes and directs a special tax of not exceeding one-fourth of 1 per cent. for these purposes.

It appears from the exhibits attached to the petition that the petition was filed for condemnation in the name of Fayette county by W.P. Boone, road supervisor. The petitioner here demurred to the original petition for condemnation because the act referred to herein is unconstitutional and void; and because it is void and gives no authority to condemn land for a public road by the road supervisor. The demurrers were overruled, and several special pleas setting up the incompetency of the probate judge to try the case were stricken from the files.

Ray &amp Cooner, of Jasper, for appellant.

Gunn & Powell, of Jasper, for appellee.

SOMERVILLE J.

The writ of prohibition is a drastic remedy and can be resorted to against a lawful tribunal only to prevent the judge or the court from proceeding in a matter of which it has no jurisdiction; or, when the court, having jurisdiction for a particular purpose, transcends the limits by which it is circumscribed. Ex parte Brown, 58 Ala. 536; Ex parte Roundtree, 51 Ala. 42, 51.

The writ is not favored in any case where the party complaining may effectively invoke some other remedy provided by law. Ex parte Peterson, 33 Ala. 76; 32 Cyc. 613, D. The sole inquiry is:

"Has the inferior tribunal assumed to act upon a matter, or upon the rights of a party, that could not be determined, or proceeded against in that forum?" Ex parte Greene, 29 Ala. 52, 58.

"If the court is one of established jurisdiction, a plea that the subject-matter of a particular suit lies without its jurisdiction, or that the party is not amenable to its cognizance, will ordinarily afford full relief." Ex parte Roundtree, 51 Ala. 51.

The petitioner does not deny the right of Fayette county to condemn land...