State v. Lyons

• Decision Date: 15 June 1905
• Citation: 143 Ala. 649,39 So. 214
• Parties: STATE EX REL. CASE v. LYONS, MAYOR.
• Court: Alabama Supreme Court

39 So. 214

143 Ala. 649

STATE EX REL. CASE v. LYONS, MAYOR.

Supreme Court of Alabama

June 15, 1905

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

"To be officially reported."

Petition for mandamus by the state, on the relation of John Case against Pat J. Lyons, to compel respondent, as mayor of the city of Mobile, to restore relator to the office of chief of police. From a judgment denying the petition, relator appeals. Appeal dismissed.

Fitts &amp Stoutz, for appellant.

B. B Boone and Gregory L. & H. T. Smith, for appellee.

TYSON J.

The appeal in this cause is from a judgment rendered by the trial court upon a final hearing denying appellant's petition for a writ of mandamus to compel his restoration by the mayor of the city of Mobile to the office of chief of police of that city, of which he was deprived by the action of that officer in ordering his removal. After this judgment was rendered, and after this appeal was taken, it is made to appear to this court that appellant was legally removed from or deposed of the office by proper proceedings had by the city council of Mobile; and motion is here made to dismiss the appeal upon the ground that his lawful removal terminates his right to the office, and therefore there is no longer an existing actual controversy between the parties involving real and substantial rights to be determined.

It is not controverted but that the action of the city council was legal and had the effect of removing the appellant from the office to which he now seeks to be restored. Should we conclude that the trial court erred in refusing the writ, and therefore reverse the judgment and order it to be issued commanding the mayor to restore him to the office, it is clear that it could not be obeyed by him. "It is a fundamental principle," says Mr. High, in his work on Extraordinary Remedies, "that the writ will never be granted in cases where, if issued, it would prove unavailing; and whenever it is apparent to the court that the object sought is impossible of attainment, * * * so that the granting of the writ will necessarily be fruitless, the court will refuse to interfere." Ex parte Du Bose, 54 Ala. 281. In Comer v. Bankhead, 70 Ala. 136, the appellant, Comer, applied to the lower court for a writ of mandamus to compel the respondent, Bankhead, as warden of the state penitentiary, to deliver to him the number of convicts to which he was entitled under his contract with the warden. The trial court sustained a demurrer to the petition, dismissed it, and refused to award the writ. Pending the appeal to this court the contract upon which Comer predicated his right to the convicts expired. This court said: "When these proceedings were instituted--August, 1881--the relator (Comer) was entitled to the relief herein above indicated. He was also entitled to relief when the circuit court pronounced judgment on the demurrers, when the appeal was taken, and when the cause was argued and submitted to this court for decision. The time has now expired within which the warden was authorized to deliver any convicts under the contract. The consequence is that no writ of mandamus can be awarded."

This principle has been expressly applied in many cases where a public officer sought by writ...