State Ex Rel. Denson v. Miller

May 13, 1920
7 Div. 76.
Reporters:
, ,
Before:
Somerville
SOMERVILLE, J.

[1] If the material allegations of the petition are true, the jury box of Shelby county v‘as unlawfully emptied and illegally and fraudulently refilled, and it is w‘ithin the jurisdiction, as it is within the duty, of the circuit court of the county to condemn that illegality and fraud by ordering the box to be fully purged of its contents and refilled according to law. Jury Commission of ‍​‌‌​​‌‌​​‌‌​‌‌​‌‌‌‌​​‌‌​​​‌​​​​​​​​‌​‌​​​​‌‌‌‌​​​‌​​‌​‌‌​‌​‌​​​​‌‌​​​​‌​‌‌​​‌‌​​‌‌​​​​‌​‌‌​​​​‌​‍Morgan County v. State ex rel. Atty. Gen., 178 Ala. 412, 59 South. 594.

[2] We presume that the ■ learned trial *234 judge denied the writ in this case because he conceived that the special relief prayed for, viz., the filling of the box according to law, contemplated the mere addition of other names to those already in the box, and was not broad enough to cover the radical relief which alone would be appropriate, viz., the quashal of the entire box as now constituted. We think, however, that the special prayer, in conjunction with the general prayer, is ample for all purposes.

[3] It may be also that relief was denied on the theory that relator has an adequate remedy without resorting to this writ, as by challenging the .veniremen for cause, when they are severally presented for service on ‍​‌‌​​‌‌​​‌‌​‌‌​‌‌‌‌​​‌‌​​​‌​​​​​​​​‌​‌​​​​‌‌‌‌​​​‌​​‌​‌‌​‌​‌​​​​‌‌​​​​‌​‌‌​​‌‌​​‌‌​​​​‌​‌‌​​​​‌​‍the jury panel on the ‘trial of his case. It is clear, however, that that procedure would be wholly inadequate for the purposes in hand.

“The ‘other remedy,’ the existence of which will oust, or, rather, prevent the invocation of, jurisdiction by mandamus, must be equally convenient, beneficial and effective as mandamus. ♦ * * It must be a remedy which will place the relator in statu quo; that is, in the same position he would have been had the duty been performed. * * * Indeed, it must be more than this. It must be a remedy which itself enforces in some way the performance of the particular duty, and not merely a remedy which In the end saves the party to whom the duty is owed unharmed by its nonperformance.” Brickman v. Wilson, 123 Ala. ‍​‌‌​​‌‌​​‌‌​‌‌​‌‌‌‌​​‌‌​​​‌​​​​​​​​‌​‌​​​​‌‌‌‌​​​‌​​‌​‌‌​‌​‌​​​​‌‌​​​​‌​‌‌​​‌‌​​‌‌​​​​‌​‌‌​​​​‌​‍259, 279, 26 South. 482, 487 (45 L. R. A. 772).

[4, 5] We, -of course, do not mean to say that the discretion of the jury commission in the selection of names for the jury roll and jury box, when fairly and independently exercised, can be controlled, or nullified, for very clearly it cannot. But it is settled by our decisions that, when the commission has acted, their discretion and powers are exhausted, and cannot be exercised again until the depletion specified in section 12 of the act (Laws 1909, p. 309) has called that discretion and those powers again into activity. The subject is fully discussed in Jury Commission v. State ex rel. Atty. Gen., 178 Ala. 412, 59 South. 594.

We do not overlook section 7243 of the Code of 1907, which provides that—

“Whenever in the opinion of ‍​‌‌​​‌‌​​‌‌​‌‌​‌‌‌‌​​‌‌​​​‌​​​​​​​​‌​‌​​​​‌‌‌‌​​​‌​​‌​‌‌​‌​‌​​​​‌‌​​​​‌​‌‌​​‌‌​​‌‌​​​​‌​‌‌​​​​‌​‍the presiding judge of the circuit, city, or criminal court in any county the jury of such county has for any reason become illegal or irregular, he may enter’ an order on the minutes of the court in term time, declaring the jury box of the county illegal and irregular and requiring the jury commissioners of the county to assemble on a day and place, to be named in the order, to destroy the names which may be in the box, and refill the box in the manner required by law,” etc.

[6] While this authorizes action by the judge upon his own opinion and initiative, and validates his action in the premises, it does not preclude the‘resort by any person having a proper interest to an independent mandatory proceeding to bring about the same result.

We ‍​‌‌​​‌‌​​‌‌​‌‌​‌‌‌‌​​‌‌​​​‌​​​​​​​​‌​‌​​​​‌‌‌‌​​​‌​​‌​‌‌​‌​‌​​​​‌‌​​​​‌​‌‌​​‌‌​​‌‌​​​​‌​‌‌​​​​‌​‍think that the writ should issue as prayed, returnable to the circuit court of Shelby county within 15 days from the date of its service upon respondents. It is so ordered.

Reversed, rendered, and remanded.

ANDERSON, O. J., and McCLELLAN and THOMAS, JJ., concur.

<S^aFor other cases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes

cS=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes