Thornhill v. Cowart

• Decision Date: 07 April 1921
• Docket Number: 8 Div. 341
• Citation: 88 So. 563,205 Ala. 455
• Parties: THORNHILL v. COWART.
• Court: Alabama Supreme Court

88 So. 563

205 Ala. 455

THORNHILL v. COWART.

8 Div. 341

Supreme Court of Alabama

April 7, 1921

Appeal from Morgan County Court; W.T. Lowe, Judge.

Petition for writ of prohibition by R.W. Cowart to prevent J.A Thornhill from exercising the powers and duties of a justice of the peace. From decree granting the petition, respondent appeals. Transferred from Court of Appeals, under section 6 Acts 1911, p. 450. Reversed and rendered.

G.O Chenault, of Albany, for appellant.

Tennis Tidwell, of Albany, for appellee.

SAYRE J.

This cause originated in a petition by appellee, Cowart, to the Morgan county court for a writ of prohibition, or other appropriate writ, directed to appellant, Thornhill, and prohibiting him from acting as a justice of the peace in the trial of an action against appellee for the recovery of the sum of $50 as damages for an alleged tort. Judgment went for the petitioner, and respondent, Thornhill, has appealed.

Appellant's right to discharge the functions of a justice of the peace in precinct 19 of Morgan county is involved, and that right depends upon the correct construction of pertinent acts of the Legislature. Prohibition, affording a speedy determination of questions involving public interests, is a proper remedy in such cases. Ex parte Roundtree, 51 Ala. 42.

Justices of the peace, not exceeding two in each precinct, are constitutional officers. Const. 1901, § 168. But in certain conditions the Legislature may provide by law for an inferior court in lieu of justices of the peace (section 168, supra), and in 1915 the Legislature passed an act creating an inferior court in lieu of justices of the peace in precinct 19 of Morgan county, wherein appellant is now exercising jurisdiction. Thereafter there was no authority of law for justices of the peace in precinct 19. But in 1919, September 12th, the Legislature repealed the act creating an inferior court in lieu of justices of the peace in precinct 19. Local Acts, p. 136. The passage of this repealing act, without more, created a vacancy in the office of justice of the peace, and appellant was appointed by the Governor to fill the vacancy pending an election. Appellant now holds his commission in virtue of this appointment. But at the same session of the Legislature, September 24, 1919 (Loc. Acts, p. 194), an act was passed creating the county court of Morgan, and conferring upon it civil jurisdiction in all cases where the amount involved does not exceed $1,000. Local Acts, p. 194. We have no...