Hill v. Tarver, 130 Ala. 592

TYSON, J.

Aрpellants were arrested on an affidavit sworn out before a police officer of the city of Montgomery, returnable before the recorder of the same city, on a charge of assault with intent to murder. Uрon their arrest, they gave -bond for their appearance before the recorder, and afterwards appeared. before him and offered to waive examination and give bond to answer any indictment thаt might be preferred by a grand jury. But the State objected to the waiver and and demanded that the evidence be taken down as required in preliminary proceedings before -committing magistrates. For the purpose of сonsidering the motion of the State involving its demand that the evidence; he heard and reduced to writing, a further .'hearing of the cаse was postponed, and pending the consideration of that question by the recorder, and before the convening of hi® court on the day to ‍‌​‌​‌​‌‌​‌‌​​​​​‌​‌​‌‌​​​‌​​​‌‌‌​‌‌​‌​‌​‌‌​‌​​‌​‍which the case was postponed, the defendants, appellаnts here, without further appearing, applied to the judge of the circuit court for a writ of prohibition. A rule nisi wаs awarded upon the presentation of their petition and on the hearing upon the petition and answer of the recorder, the judge discharged the rule and dismissed the petition. The question attempted to be raised by the petition is the constitutionality of the charter of the city of Montgomery in so -far as it confers the jurisdiction -of a justice of the peace upon the recorder in preliminary hearings of offenses against tlie criminal laws of tlie State, and in so far as it authorizes the city council ‍‌​‌​‌​‌‌​‌‌​​​​​‌​‌​‌‌​​​‌​​​‌‌‌​‌‌​‌​‌​‌‌​‌​​‌​‍to confer power on the police officers of the city to take affidavits and issue warrants of arrest.

It is contended, first, that in this aspect thе charter is invalid for the reason that said matters are not embraced in its title, and for the further reason that it authorizes the city council to confer powers of a judicial nature upon the executive officеrs of the city.

Whenever the question is distinctly presented necessary to the decision of the particular case, this court-will not hesitate to determine the constitutionality of legislative ‍‌​‌​‌​‌‌​‌‌​​​​​‌​‌​‌‌​​​‌​​​‌‌‌​‌‌​‌​‌​‌‌​‌​​‌​‍enactments. But it is the settled doсtrine of this court that “upon such questions courts, do not enter when the case before them can be detеrmined on oilier grounds.” —Joiner v. Winston, 68 Ala. 129; Smith v. Speed, 50 Ala. 276. We are of opinion that the propriety of the action of the court below in refusing to issue the writ of prohibition is determinable aside from the constitutional question. When the constitutional inquiry relates to the legality of the court which assumes to act — involving its power to -act in any case — it is unnecessary to object preliminarily to its exercise of jurisdiction. In the very nature of things, it could not determine the question of its -own рower to act or exist as a couxfi. — High Ext-r. Bern. § 773. But when the court has power to act in any case, its exercise of jurisdiction over the particular' case must he brought to its attention by an objection of some kind before resort can be had to the extra-ordinary remedy of prohibition. The general doctrine is thus stated: “Applications for the writ of prohibition are premature until exception has been taken to the jurisdiction оf the lower court and overruled and will be refused, if this has not been done, for it is invariably presumed that courts will give tо parties the relief to which they show themselves entitled.” — 16 Encyc. PI. & Pr. 1128. Such however is not the uniform rule, — some courts hоlding that no objection need be made where the- court is without jurisdiction of the subject ‍‌​‌​‌​‌‌​‌‌​​​​​‌​‌​‌‌​​​‌​​​‌‌‌​‌‌​‌​‌​‌‌​‌​​‌​‍matter. It is quite true that the absence of objection co-uld not invest the recorder with jurisdiction of the subject matter, if he had none; аnd confessedly be bad none if tbe charter, in tbe respects criticised, was unconstitutional. It is also true that jurisdiсtion of tbe subject matter cannot be conferred by consent or deduced from waiver. But while 'all this is true, it must be presumed, as stated, that every court will perform its duties; that if the act (charter) is unconstitutional tbe recorder wоuld have so held, if an ‍‌​‌​‌​‌‌​‌‌​​​​​‌​‌​‌‌​​​‌​​​‌‌‌​‌‌​‌​‌​‌‌​‌​​‌​‍opportunity bad been afforded him, and have quashed tbe proceedings. In Ex parte Greene and Graham, 29 Ala. 58, this court said: “Some of the adjudged eases go so far as to -assert, that tbe writ will not be issued in any case, until tbe party who cоmplains of tbe abuse of power shall have sought redress in tbe inferior court, and failed to obtain it. * * * On this question, we prefer, for the present, to remain uncommitted, further than may be inferred from the case of Smith, supra.” But in Ex parte Hamilton, 51 Ala. 62, in which it was sought to prohibit tbe сhancellor on the ground that be was without jurisdiction of the subject matter, the writ was refused for tbe reason that rеdress had not been sought, in the first instance, before tbe chancellor. Ex parte Green and Graham, supra was cited without the qualifying reference to Smith’s case, which is shown by tbe context to have referred to Ex parte Morgan Smith, 23 Ala. 94. See also Ex parte Edwards, 123 Ala. 102. As the result of these and other authorities, if follows that the recorder should have been made aware in some form before being cited to aрpear to defend against the application for the writ of prohibition — involving as it does a charge of usurpation of power and authority — that objection was made to his exercise of jurisdiction. This doctrine in nowise conflicts with the proposition often held, by this court on appeal that it will ex mero motu notice a defect оf jurisdiction of the lower court over the subject matter. The question here is, whether 'a resort to the remedy by prohibition may be had when no objection of the kind has been made in the court whose jurisdiction is assailed; or, rather, the plainer question, whether we will reverse the circuit court, which, in the exercise of a sound legal discretion, has refused the writ.

Affirmed.

Case Details

Case Name: Hill v. Tarver

Court Name: Supreme Court of Alabama

Date Published: Nov 15, 1900

Citation: 130 Ala. 592

Court Abbreviation: Ala.