156 Ga. 756 | Ga. | 1923
Two accusations were sworn out in the criminal court of Atlanta against the plaintiff in error. Both accusations charged misdemeanors. In one of these accusations he was accused pf having violated the provisions of section one of the act regulating the signing of criminal bonds by professional bondsmen, approved August 10, 1921 (Acts 1921, p. 243), in that it was alleged that he had charged and received more compensation as surety on a criminal bond of one S. C. Perkerson than was allowed by law. In the second accusation he was charged with having violated section six of the same act (Acts 1921, p. 245), by surrendering his principal, S. C. Perkerson, into the custody of the Eulton County jail without returning to him the sum of $50 paid to him for signing the bond as surety. The plaintiff in error was arrested and gave bond for his appearance to answer these charges, and the cases were set for trial on December 12, 1922. He was informed by the judge and solicitor of the court that the cases would be tried on that date, and on December 12, 1922, he presented to his honor George L. Bell, judge of the superior court of the Atlanta circuit, a petition for a writ of prohibition. Upon the petition the judge issued a rule nisi requiring the judge and solicitor of the criminal court of Atlanta to show cause, on December 23, 1922, why the writ of prohibition shordd not be granted. The hearing was continued until January 12, 1923, when the matter was heard by his honor, W. D. Ellis, judge of the Atlanta circuit, when a general
We think the trial judge correctly declined to issue the writ of prohibition, and that he did not err in sustaining the demurrer. It was not necessary for the trial judge to have considered the allegations of the petition further than to ascertain whether the criminal court of Atlanta had jurisdiction to try the cases referred to in the petition, and thereby, or otherwise, ascertain whether the petitioner was deprived of all remedies unless the writ of prohibition was issued. Since the refusal of the writ of prohibition in this case, this court, in passing upon the case of Jackson v. Beavers, 156 Ga. 71 (118 S. E. 751), adjudicated all of the questions as to the validity of the act of 1921, regulating the business of professional bondsmen; and the judgment of the court upon question of these provisions was adverse to the contentions of the plaintiff in error as presented in the petition for the writ of prohibition. However, as we have just remarked, whether the act of 1921 was constitutional or unconstitutional, this question would afford no reason for granting the writ of prohibition nor would that fact in •
While the writ of prohibition has been classified as an equitable remedy by this court (Mayor &c. of Montezuma v. Minor, 70 Ga. 191), historically it is a common-law writ of very ancient origin. So much so that forms of it are given in Glanville, the first book of English law, written in 1189 A. D. It was one of the prerogative writs of the king, necessary to control subordinate functionaries and authorities. State v. Road Commissioners, 1 Mill (S. C.), 55 (12 Am. D. 596, and note). It flowed from the executive authority of the king, delegated to his courts. Jurisdiction by prohibition is primarily preventive or restraining. Havemeyer v. Superior Court, 84 Cal. 337 (24 Pac. 121, 10 L. R. A. 627, 18 Am. St. R. 192) ; Powhatan Coal Co. v. Ritz, 60 W. Va. 395 (56 S. E. 357, 9 L. R. A. (N. S.) 1225). It is only incidentally remedial in that it may result in relief to parties. Powhatan Coal Co. v. Ritz, supra; note to 3 L. R. A. 56. Generally it is not available for relief of grievances which may be redressed in the ordinary course of judicial proceedings by other legal remedies. Prohibition being an extraordinary writ, it can not be used when the ordinary and usual remedies provided by law are applicable and available. Alexander v. Crollott, 199 U. S. 580 (26 Sup. Ct. 161, 50 L. ed. 317). Even an indirect and inconvenient remedy may be sufficient to prevent the issuance of the writ. People v. Wyatt, 186 N. Y. 383 (79 N. E. 330, 10 L. R. A. (N. S.) 159). It may be safely held that it is only when there is something in the nature of the
Judgment affirmed.