Saunders v. Russell

• Decision Date: 31 December 1882
• Citation: Saunders v. Russell, 78 Tenn. 293 (Tenn. 1882)
• Parties: W. H. Saunders et al. v. John W. Russell.
• Court: Tennessee Supreme Court

78 Tenn. 293

W. H. Saunders et al.

v.John W. Russell.

Supreme Court of Tennessee.

December Term, 1882.

FROM DAVIDSON.

Appeal in error from the Circuit Court of Davidson County. FRANK T. REID, J.

MORRIS & KENNEDY for Saunders.

ANDREW MCCLAIN and ATTORNEY-GENERAL LEA for Russell.

COOPER, J., delivered the opinion of the Court.

On the first Monday of August, 1881, T. H. Butler, clerk of the county court of Jackson, issued to the sheriff, or any constable of Davidson county, a distress warrant, to be levied of the goods and chattels, lands and tenements of John W. Russell, sufficient to pay $60, double the amount of the State tax, $60 double the amount of the county tax, and $15 double the amount of the road tax, $2 double clerk's fee, and $20 double attorney's fees, in all $157, and all legal costs accruing on the writ, for exercising in the county of Jackson the privilege of being a dealer in live stock, without having obtained a license as required by law. This warrant was placed in the hands of W. H. Saunders, a constable of Davidson county, to be executed. Thereupon, John W. Russell filed his petition in the circuit court of Davidson county for writs of certiorari and supersedeas, to remove the proceedings into the circuit court, and supersede the warrant. Writs were granted and issued as prayed. The defendant Butler moved the circuit court to dismiss the petition for want of merit on its face, and also because the court had no jurisdiction in the premises. The court overruled the motion, and being of opinion that T. H. Butler, as collector of privileges for the county of Jackson, had no authority in law to issue a writ of distrainer to the county of Davidson, quashed the warrant, with costs, and Butler appealed.

The writ of certiorari is in this State a constitutional writ (Const., art. 6, sec. 10), and has always had a more extended application than in England, and been used for purposes unknown to the common law. It is the universal method by which the circuit courts exercise control over all inferior jurisdictions, however constituted, and whatever may be their course of proceeding: Stuart v. Hall, 2 Tenn., 179; Durham v. United States, 4 Hayw., 54, 69. The action of a tax collector in seizing property by a distress warrant is both judicial and ministerial, and writs of certiorari and supersedeas are the proper means by which to test the validity of the warrant, or the right to issue it in the particular case: Code, sec. 3123; Mayor v. Pearl, 11 Hum., 249;Spears v. Loague, 6 Cold., 420;Friedman v. Mathes, 8 Heis., 488, 502.

The process of distress warrant, says McKinney, J., in Mayor v. Pearl, is of a character entitled to no particular favor. “In its issuance as well as in its substantial forms and modes of execution, there must be a strict compliance with the requirements of the law.” The warrant in that case was in the name of the Mayor and Aldermen of the city of Nashville, and it was held to have been properly superseded and quashed. If the object of the certiorari be to revise the judicial act of the official who issue the warrant, the jurisdiction is in the circuit court of the county in which the act has been done: Cotton v. Dromgoole, 3 Baxt., 230;Rogers v. Miller, 1 Swan, 22. The reason is that the general supervision of the circuit court over inferior tribunals must ordinarily be restricted to the tribunals within the limits of its jurisdiction, and the judgment rendered would be such as the inferior tribunal ought to have rendered. If the object of the certiorari be simply to quash the warrant without interfering with the judicial act, no reason occurs why it may not be done by any court having jurisdiction of the subject-matter and the parties. If the writ be void on its face, the person against whom it was directed might sue the officer making the levy in trespass or replevin, and these actions would be brought in the county to which the writ issues. The certiorari is only another remedy for quashing the writ in such a case, and may properly be resorted to in the same county for any purpose only affecting the writ: Rogers v. Miller, 1 Swan, 22;Mabry v. State, 9 Yer., 207.

The petition in this case seeks both to revise the judicial act of the county court clerk of Jackson county, and to quash the writ as void upon its face. The petitioner avers, on the merits, that he resided in the city of Nashville, Davidson county, being engaged in the business of keeping a feed and sale stable, and buying and selling live stock, having paid to the clerk of the county court of Davidson county the privilege tax required by law in both cases, and having separate licenses, one as the keeper of a sale stable, and the other as a dealer in live stock, the licenses being dated July 1, 1881, for one year, and issued under the act of 1881, ch. 149, sec. 4, the act under which the clerk of the county court of Jackson county claims to issue his warrant. The petitioner further states that in the conduct of his business as a stock dealer at Nashville, he buys stock in other counties, going for that purpose to...