Ex parte Grant

6 Ala. 91 | Ala. | 1844

COLLIER, C. J.

The writ of mandamus, especially of late ’ years, has been extensively used, and is certainly a most valuable auxiliary in the administration of remedial justice. It is ■ appropriately employed in many cases, where a party has a clear legal right, and no other adequate legal remedy. But we do not remember any case in which the Judge, unauthorised by statute, or rule of court, has ever awarded it in vacation. Mr Blackstone says, “a writ of mandamus is, in general, a command issuing in the King’s name, from the court of King’s bench, and directed to any person, corporation, or inferior court of judicature within the King’s dominions, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the court of King’s bench has previously determined, or at least, supposes to be consonant to right and justice.” [3 Black. Com. 110. See also, 6 Dane’s Ab. chap 186, art. 2.]

In the present case, no application has been made to the circuit court for a mandamus, but merely to the Judge of that court, who in our opinion could only entertain the petition in term time, and in open court. The refusal then, was a matter of course, and whatever may be the merits of the petitioner’s case, which we purposely avoid considering, it is clear, that there has been no erroneous decision against him.

We have repeatedly held that the constitution inhibits the exercise of original jurisdiction in a case like the present; but that we would, in order to give us a general superintendence and control over inferior jurisdictions, entertain such a case, where the tribunal, the next in grade, had refused to act, or acting, had misapprehended the law. It results, that the application for a mandamus must be denied, at the cost of the petitioner.