Monette Road Improvement District v. Dudley

Decision Date24 May 1920
Docket Number3
Citation222 S.W. 59,144 Ark. 169
CourtArkansas Supreme Court

Original application for prohibition to Craighead Circuit Court, Lake City District; R. H. Dudley, Judge; writ awarded.

Writ of prohibition awarded.

A. P Patton and Rose, Hemingway, Cantrell & Loughborough, for petitioner.

The writ of certiorari is restricted to reviewing a judicial or quasi judicial act, and injunction or some other remedy would be available to correct an error in the performance of a legislative, executive or administrative act; and, since the assessment of benefits is a legislative or administrative act, the circuit court was without jurisdiction to correct any error as to assessments for local improvements or cancel a contract under the rulings of our courts. 105 Ark. 65; 134 Ark. 121; 93 Id. 336-342; 94 Id. 239; 104 Id. 21; 62 Id. 196; 109 Id. 106; 126 Id. 125. See, also, Mo.-Pac. Ry. Co. v Conway Co. Bridge Dist., 142 Ark. 1.

Sloan & Sloan, also for petitioner.

1. The act of 1873 does not confer jurisdiction upon the circuit court to grant injunctive relief, and the court was without jurisdiction. 83 Ark. 54-61; Kirby's Digest, § 3966; 93 Ark. 336-41; 94 Id. 235; 104 Id. 16; 33 Id. 690; 74 Id. 421. If it was the intention of the act of 1873 to confer injunctive jurisdiction upon a law court, the act was repealed by the act creating a separate chancery court. Acts 1903, p. 314; 57 Ark. 528; 44 Id. 377; 80 Id. 145-9; 116 Id. 490; 95 Id. 618; 109 Id. 250; 73 S.W. 368-372; 6 A. & Eng. Enc. Law (2 ed.), p. 1048; 12 C J. 816; 76 Ark. 184-191.

2. The circuit court has no jurisdiction of the alleged certiorari proceedings. Spelling on Inj., etc., §§ 1955-6; 2026; 43 A. & C. 682 (N. J.); 35 Ark. 95; 97 N.Y. 37; 96 Ark. 251-263. See, also, 17 Standard Enc. Pro. 797-8. No cause of action furnishing jurisdiction to the circuit court for certiorari was stated in the complaint, and the cause should have been transferred to chancery as prayed.

J. F. Gautney and Lamb & Frierson, for respondent.

1. The writ of prohibition should not issue. 73 Ark. 66; 88 Id. 153. It is a writ of discretion and not of right, and never issues when there is any other remedy. 22 R. C. L. 5. In this case there is another remedy by appearing in court and appealing if the decision is adverse. 124 Ark. 238; 96 Id. 332; 101 Id. 106; 33 Id. 161; 66 Id. 211; 77 Id. 140; 74 Id. 217; 33 Id. 191; High on Extr. Legal Rem., §§ 770-1; 74 Ark. 217; 56 Id. 511; 115 Id. 317.

2. Certiorari does not lie. 16 C. J. 126, § 75; 40 Ark. 507. It does not lie to correct errors or irregularities and can not be used as a substitute for appeal, save where the right of appeal is lost without fault of petitioner, and lies to correct a lower tribunal only when it proceeds illegally and there is no other method of arresting action. 37 Ark. 318; 17 Id. 580; 25 Id. 476; 30 Id. 148; 39 Id. 399; 43 Id. 33; Ib. 341; 44 Id. 509; 47 Id. 511; 51 Id. 281; 101 Id. 522; 96 Id. 344; 61 Id. 605; 61 Id. 287; 131 Id. 211; 98 Id. 343; 70 Id. 71. A finding of fact by the circuit court will not be reviewed on certiorari. 45 Id. 94; 73 Id. 604.

3. The complaint showed jurisdiction in the circuit court and the order rendered was within its jurisdiction. Kirby's Digest, §§ 1315-1318-19. A board acting as in this case necessarily assumes judicial functions and is subject to certiorari. 11 C. J., pp. 121-2, par. 68; 62 Ark. 196-201; 70 Id. 568; 60 N.E. 187; 109 Ark. 100; 126 Id. 125. Certiorari lies to quash a void assessment and levy. The jurisdiction of the circuit judge to issue the writ of certiorari is unquestioned. 37 N.W. 809; 51 L. R. A. 111; 20 L. R. A. (N. S.) 946. Circuit courts have exclusive jurisdiction of all matters not vested in other courts by our Constitution. Art. 7, § 11; Kirby's Dig., §§ 1304-5. The jurisdiction of the circuit court was not ousted by subsequent legislation. 11 C. J., § 578; 98 Ark. 63; 30 Id. 568; 1 Pom., Eq. Jur. (4 ed.), § 279; 116 Ark. 490. The Legislature can not enlarge the jurisdiction of our chancery courts. 80 Ark. 145; 95 Id. 618; 116 Id. 490; 115 Id. 437. See, also, 111 Ark. 144; 66 Id. 201. The circuit court had jurisdiction because of an "illegal exaction." Kirby's Digest, § 3966; Const., art. 16, § 13; 33 Ark. 436-441.

4. The assessment is void and should be quashed by certiorari. Page & Jones on Spec. Assmt., § 568; 1 Id. 783. The property is not properly described upon the assessment books and is invalid. 2 Page & Jones on Spec. Assmts., § 886, p. 1505 et seq., p. 1524. The mutilation by the commissioners of the assessments since filing same as a public record vitiates the assessment. 2 Page & Jones, Spec. Assmts., §§ 886, 909; 74 N.E. 726-729.

5. Neither prohibition nor certiorari will lie. Authorities supra, and 112 Ark. 437; 80 Id. 411; 84 Id. 329.

MCCULLOCH C. J. WOOD, J. dissenting.



Monette Road Improvement District is, as its name implies, a road improvement district formed for the purpose of improving certain roads, and was created by a special statute enacted by the General Assembly of 1919 (Act No. 58, Acts 1919, Regular Session, volume 1, page 105).

Application is made to this court on behalf of said district for a writ of prohibition directed to the Honorable R. H. Dudley as judge of the second division of the circuit court of the Second Judicial Circuit to prevent the circuit court of Craighead County, Lake City District, from hearing and determining a certain proceeding brought up to that court on certiorari, issued by said judge, and returnable to said circuit court, involving the validity of the acts of the commissioners of said district in assessing benefits and in attempting to construct the improvement.

It is alleged in the petition filed here that Alex McDonald and certain other persons filed their complaint in said circuit court, praying for a writ of certiorari directed to the commissioners of said district to bring up the assessment of benefits made by the commissioners and to quash the same, and to enjoin the commissioners of the district from proceeding with the construction; that the circuit court is entirely without jurisdiction in the premises and that the petitioners appeared in court and moved to dismiss the proceedings for want of jurisdiction, but that the court overruled said motion and proceeded to issue a writ of certiorari as prayed for by the plaintiffs in that cause, and made it returnable at the next term of that court, and that the judge also issued a restraining order to prevent the petitioner and the commissioners of the district from proceeding with the work of improvement. A copy of the complaint in the proceedings below and the other pleadings are exhibited with the petition.

The circuit judge appears here by counsel and files a response in which he admits that he has issued the writ of certiorari, as alleged, returnable to the circuit court, but denies that the writ was heard or issued by the court or that the petitioner herein had appeared before the court for the purpose of objecting to the issuance and hearing of the writ, and alleges, on the contrary, that the petition for a writ of certiorari was presented to the circuit judge at chambers in vacation and was heard by him, and that the writ of certiorari and also the temporary injunction were issued by him in vacation, returnable to the circuit court to be heard by that court in term time. The judge also alleges in his response that the matters and things set forth in the complaint in the proceedings below are within the jurisdiction of the circuit court, and he denies that he exceeded his jurisdiction in granting the certiorari and injunction.

The first question which arises for our decision is whether or not prohibition is the appropriate remedy and is available to the petitioner under the circumstances of this case. The facts, when reduced to the simplest form, as bearing on this particular question are that the plaintiffs in the action instituted in the circuit court appeared before the circuit judge in vacation for the purpose of procuring the issuance of a writ of certiorari to bring up the proceedings of the board of commissioners of the improvement district, and to obtain an injunction to restrain further proceedings by the commissioners of the district until the cause could be heard in the circuit court; that the commissioners, as the representatives of the district, appeared by counsel before the circuit judge at the hearing and objected to the exercise of jurisdiction by the court, and that a writ of certiorari and also of temporary injunction was issued by the judge over the protest of the petitioner.

The scope of the writ of prohibition is too well known to be in doubt. In the recent case of Ferguson v. Martineau, 115 Ark. 317, 171 S.W. 472, this court quoted with approval the following statement of the law from a well-known text-writer on the subject: "The writ of prohibition is that process by which a superior court prevents an inferior court or tribunal from usurping or exercising jurisdiction with which it has not been vested by law." Spelling on Injunctions and Extraordinary Remedies, § 1716; Shortt on Information, Mandamus and Prohibition, p. 436.

The last named text-writer, at the place indicated, laid down the rule as follows: "The broad governing principle is that a prohibition lies where a subordinate tribunal has no jurisdiction at all to deal with the cause or matter before it; or where, in the progress of a cause within its jurisdiction, some point arises for decision which the inferior court is incompetent to determine. But a prohibition will not lie where the inferior court has jurisdiction to deal with the cause and with all matters...

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