State v. Bradley

• Decision Date: 28 June 1902
• Citation: 33 So. 339,134 Ala. 549
• Parties: STATE EX REL. TURNER v. BRADLEY, JUDGE, ET AL. [FNa1]
• Court: Alabama Supreme Court

33 So. 339

134 Ala. 549

STATE EX REL. TURNER v. BRADLEY, JUDGE, ET AL. ^[FNa1]

Supreme Court of Alabama

June 28, 1902

Appeal from circuit court, Lamar county; S. H. Sprott, Judge.

Application by the state, on the relation of Turner, for writ of prohibition to R. L. Bradley, probate judge of Lamar county and others. Petition dismissed, and petitioner appeals. Affirmed.

W. A Young and Nesmith & Nesmith, for appellant.

Foster & Oliver, for appellees.

TYSON J.

Appeal from judgment denying writ of prohibition and dismissing the petition. The relief sought by this proceeding is to restrain the probate judge of Lamar county from entering an order upon a petition filed in his office by 25 bona fide residents of election precinct No. 1 of that county, stating that they desire an election in such precinct to ascertain whether or not a majority of the residents of said precinct desire a stock law, etc. By virtue of the act entitled "An act to provide and establish a stock law for Lamar and Fayette counties" (Acts, 1898-99, p. 689), upon the presentation of such a petition to the judge of probate, accompanied with a deposit of a sufficient sum of money to defray the expenses of the election desired, it is made his duty to file it in his office, and to indorse upon it an order that an election shall be held in the precinct designated in the petition on a day to be named in the order, not less than 40 days from the date of filing such petition; also to cause a notice to be inserted in some newspaper published in the county of the time and place of holding such election. The primary question presented is whether the duties imposed upon the judge of probate are of a purely judicial nature, or whether they are merely administrative or ministerial. If of the latter class, although required to be performed by a judge of a court, a writ of prohibition will not lie. "The proper office of a writ of prohibition is to restrain inferior courts or tribunals from unauthorized judicial acts, and it cannot be used to prevent performance of ministerial acts although performed by the judge or presiding officer of an inferior tribunal." 16 Enc. Pl. & Prac. p. 1102. This principle was clearly recognized and enforced in the case of Ex parte State (In re Pierce), 89 Ala. 177, 8 So 74, where it was held that this court will not award a prohibition to the presiding judge of the city court of Montgomery to annul or prevent action under an illegal order for the discharge of a convict before the expiration of the term prescribed by his sentence, such order being a ministerial act. In that case, before the judge could determine upon the doing of the act he was requested to do, he had to ascertain that the person making the application was the identical person whom he had theretofore sentenced to perform hard labor, to pay fine and costs, the number of days the applicant was to labor to pay the fine, and that he had labored those days, as well as the amount of the whole costs, and the amount of such costs upon the payment of which the applicant was entitled to his discharge. Notwithstanding it was incumbent upon...