Goodwin v. State ex rel. Wakefield

40 So. 122 | Ala. | 1906

ANDEIiSON, J.

The petition- in the case seems to be filed in a double aspect. It starts off by attacking the right of two of the commissioners to exercise the duties of the office, upon the ground that they have no right to hold the same and are usurpers. The prayer for the-writ, which is doubtless based upon the above contention, is that they be restrained from exercising-any of the duties or functions pertaining to the court of county commissioners. It would therefore appear that the evident purpose of the first ground of the petition is intended for the sole purpose of testing the right of these two commissioners to hold office, and for which a plain and adequate remedy is given. — Code 1896, p. 966, C. 94, § 3420.

“Prohibition is an extraordinary writ, only to be resorted to when its exercise is necessary to give a general superintendence and control of inferior jurisdiction; never to be restorted to except in cases of usurpation and abuse of powers, and not then unless other remedies are ineffectual to meet the exigencies of the case.” — Ex parte Greene, 29 Ala. 52 ; High on Ex. Remedies, 763. “The writ can only issue where there is some court or person to whom it may be addressed and against whom it may be enforced, and there must be some pending cause in the court sought to be restrained upon which the writ of prohibition may operate.”- — -23 Am. & Eng. Ency. Law, 197.' It is true the petition avers the improper letting of a contract to build a bridge; but the first prayer asks no relief as to that, but simply seeks to prohibit two of the commissioners from a general discharge of official duty in the future.

The second ground of complaint of the petition is that the commissioners illegally contracted to build the bridge at a meeting not authorized by law. Conceding-, without so deciding, that this is a judicial act, and, if done at a time not authorized by law, would be void.- — (Ex parte Branch & Co., 63 Ala. 383), the petition shows, however, that the deed has been done, and we understand that the writes intended to prohibit the performance of a judicial act, not to quash a judgment or order already made or rendered, although void. While the petition charges the illegal letting of the contract, the prayer in reference to this phase of the case seeks to enjoin the commissioners’ court from proceeding further with the construction of the bridge and that they be restrained from issuing or drawing a warrant for same. The petition shows that the contract to build the bridge has been let and that the construction is with Dobson, and not the commissioners’ court. The issuance of the warrant and allowance of the claim is a ministerial act. — Commissioners’ Court v. Moore, 53 Ala. 25. “Prohibition is to restrain judicial, and not ministerial, acts though performed by judges.” — Ex parte State, 89 Ala. 177, 8 South. 74 ; Atkins v. Siddons, 66 Ala. 453.

Section 2, p. 107, Acts 1901, gives the judge of the Walker county law and equity court authority to issue the writ of prohibition, and said section was not amended or repealed by tbe act on page 1112 of said Acts. The order of the rule nisi was improvidently made, and the order of the judge is reversed, and one is here made denying relief.

Reversed and rendered.

Tyson, Dowdell, and Simpson, JJ., concur.