State ex rel. McQueen v. Brandon

• Citation: 244 Ala. 62,12 So.2d 319
• Decision Date: 25 February 1943
• Docket Number: 3 Div. 389.
• Parties: STATE ex rel. McQUEEN, Atty. Gen., et al. v. BRANDON et al.
• Court: Supreme Court of Alabama

12 So.2d 319

244 Ala. 62

STATE ex rel. McQUEEN, Atty. Gen., et al. v. BRANDON et al.

3 Div. 389.

Supreme Court of Alabama

February 25, 1943

Wm N. McQueen, Atty. Gen., and John W. Vardaman, Asst. Atty Gen., for appellants.

Irvine C. Porter, of Birmingham, for appellee Fernandez.

THOMAS, Justice.

The appeal presents a construction of a statute. Code 1940, T 55, § 334.

This cause arose out of an accident caused to one of the respondents, Olivia H. Fernandez, when she was hit by a truck that belonged to the City Board of Education of Birmingham Alabama, and who is one of the petitioners for writ of prohibition. As a result of this accident Olivia H. Fernandez filed a claim for personal injuries with the state board of adjustment, alleging that she was injured to the extent of $1,000 as a result of the accident, caused by the negligent operation of the truck belonging to the City Board of Education of Birmingham by one of the city board's agents, servants or employees.

The attorney general upon whom is placed the duty of representing the state before the board of adjustment, Code 1940, T. 55, § 333 et seq., filed a motion to dismiss the claim on the ground that the state board of adjustment has no jurisdiction of the claim, it being a claim arising from the negligence of an agent, servant or employee of the city board of education and that a city board of education is not an agency, commission, board, institution or department of the state within the purview of the statutes creating the board of adjustment.

Counsel for respondent in writ of prohibition filed with the state board of adjustment a motion to strike the attorney general's motion to dismiss. The board of adjustment denied the motion to dismiss, granting claimant's (Olivia H. Fernandez's) motion to strike the attorney general's motion to dismiss.

Whereupon the attorney general filed in the circuit court a petition for writ of prohibition directed to the State Board of Adjustment, to compel that body to refrain from hearing said claim on its merits or from further proceeding in said cause: and prayed that a writ of prohibition, or other appropriate remedial writ, so ordering the board, be issued.

To this petition for writ of prohibition, the respondent Olivia H. Fernandez filed a special plea, in which she contended that a writ of prohibition should not issue in this cause because the state board of adjustment is not a judicial body. The attorney general moved to strike this special plea on the ground that the state board of adjustment is a judicial or quasi-judicial body and that petitioner had no other legal remedy. The circuit court granted the attorney general's motion to strike said special plea of Olivia H. Fernandez, challenging jurisdiction.

Respondents then filed demurrers to the attorney general's petition for writ of prohibition, stating as grounds that, the city boards of education were agencies, commissions, boards, institutions or departments within the purview of the statutes creating the state board of adjustment. Upon consideration of that demurrer, the trial court sustained the same, and petitioners for prohibition refusing to plead further, final judgment rendered for the respondents, the state board of adjustment and Olivia H. Fernandez. From this judgment of the circuit court, petitioners appeal to this court.

The first question presented for decision touches the subject of availability of writ of prohibition as means of controlling administrative or executive boards or officers. The text and authorities collected in 115 A.L.R., page 4, are illuminating. The statement of the text and authorities collected from this and other states on the subject are:

"And in Bacon's Abridgement the subject of Prohibition is thus introduced: 'As all external jurisdiction, whether ecclesiastical or civil, is derived from the Crown, and the administration of justice is committed to a great variety of courts, hence it hath been the care of the Crown that these courts keep within the limits and bounds of their several jurisdictions prescribed them by the laws and statutes of the realm. And for this purpose the writ of prohibition was framed; which issues out of the superior courts of common law to restrain the inferior courts, whether such courts be temporal, ecclesiastical, maritime, military, etc., upon a suggestion that the cognizance of the matter belongs not to such court.'

"It is implicit in these definitions, and it is the well-settled general rule in the absence of a statute or constitutional provision extending the scope of the common-law writ of prohibition, that the writ lies only against officers possessing or assuming functions or powers of a judicial character, and it will not issue to prevent performance of ministerial or administrative acts or functions. [Italics supplied.]

" United States. United States v. Berry, D.C., 1880, 4 F. 779, 2 McCrary 58.

" Alabama. Atkins v. Siddons, 1880, 66 Ala. 453; State ex rel. Turner v. Bradley, 1901, 134 Ala. 549, 33 So. 339; Goodwin v. State, 1906, 145 Ala. 536, 40 So. 122; Commissioners' Ct. v. State, 1907, 151 Ala. 561, 44 So. 465; State Tax Commission v. Bailey & Howard, 1913, 179 Ala. 620, 60 So. 913."

In State Tax Commission v. Bailey & Howard, 179 Ala. 620, 632, 60 So. 913, 917, it was held: "* * * A judicial officer or body will not be restrained by the writ of prohibition from doing an act although unauthorized, unless the said act is of a judicial nature. Washington County v. [State ex rel.] Bowling, 151 Ala. 561, 44 So. 465; State v. Bradley, 134 Ala. 549, 33 So. 339. * * *"

The recent decisions of this court are to the effect that a writ of prohibition may be directed by a superior court to an inferior court or judicial tribunal, and issue to prevent usurpation of judicial power by inferior jurisdictions when other remedies are ineffectual. State ex rel. Radcliff v. City of Mobile et al., 229 Ala. 93, 155 So. 872 (to the city commission); Ex parte State ex rel. Bragg, 240 Ala. 80, 197 So. 32 (to circuit court to desist from proceeding in a matter material to the administration of the democratic executive committee in the determining of a primary election and to prohibit the committee from action on the contest).

In the case of Hawkins v. State Board of Adjustment, 242 Ala. 547, 7 So.2d 775, 776, it is held:

"A county board of education, whose funds are state funds, can sue and be sued to a limited extent, but not on a claim arising from negligence of one of its servants because board is an independent agency of the state, though not immediate, and is acting in a governmental capacity.

"The Legislature by statute giving Board of Adjustment authority over claims for damages to a person growing out of any injury done him by the state of Alabama or any of its agencies, commissions, boards, institutions, or departments intended to extend jurisdiction of board to all state agencies whether immediate or remote while they are engaged in governmental functions so as to be immune from suit on claims of the sort enumerated, and hence the board was authorized to hear a claim for negligence of a servant of a county board of education. Code 1940, Tit. 55, § 334."

We hold that under our decisions, the action of the state board of adjustment may be subject to a prerogative writ in a proper case by a higher court having the power of supervision.

The next and primary question that is raised on this appeal is whether or not a city board of education is an agency, commission, board, institution, or department of the State of Alabama within the purview of the statutes creating the state board of adjustment and the due discharge of its functions and powers?

The statutes affecting the State Board of Adjustment are found in Code of Alabama 1940, T. 55, §§ 333, 334. Section 334 thereof sets out the powers and jurisdiction of the board and provides, in part, as follows: "The board of adjustment shall have the power and jurisdiction and it shall be its duty to hear and consider all claims for damages to the person or property growing out of any injury done to either the person or property by the State of Alabama or any of its agencies, commissions, boards, institutions or departments; * * *. The jurisdiction of the board of adjustment is specifically limited to the consideration of the claims hereinabove enumerated, and no others. * * *."

The statutes creating and defining the powers of the board of adjustment are to be strictly construed. The statutes did not create a right but granted a privilege in the exact terms employed. In Turner v. Lumbermens Mut. Ins. Co., 235 Ala. 632, 635, 180 So. 300, 303, it is said: "* * * And the State Board of Adjustment, so set up, was of limited jurisdiction and powers, and may exercise only the jurisdiction and powers conferred by the said statute, which is set out in Lee, State Comptroller, v. Cunningham, 234 Ala. 639, 176 So. 477; John E. Ballenger Const. Co. v. State Board of Adjustment et al., 234 Ala. 377, 175 So. 387; Dunn Const. Co., Inc., v. State Board of Adjustment et al., 234 Ala. 372, 175 So. 383."

To determine whether or not a city board of education is an agency, commission, board, institution or department of the State of Alabama, as enumerated in the acts, Acts of 1935, p 1164; Acts of 1939, p. 602; Code 1940, T. 55, § 333 et seq., we must consider the statutes creating and regulating city boards of education, as now codified. Code 1940, T. 52, §§ 148-176. Its section 152 provides that the members of city boards of education shall be elected by the city council or commission; and its section 161 provides that suits brought by city boards of education shall be brought in the name of the city. 1927 School Code, § 201. It is apparent...