3 So. 2d 26 | Ala. | 1941
This is a proceeding by quo warranto to restrain the appellant from treating the diseases of human beings by the science of chiropractics on the ground that he was so engaged without a certificate of qualification, required and authorized by Chapter 52 of the Code of 1923, §§ 2836-2894, Code 1940, Tit. 46, § 258 et seq., and was instituted by the County Solicitor of Morgan County by information filed by him, in the name of the State, without security for costs.
It has been consistently ruled here that failure to give security for costs in such proceedings, in the absence of an order of the Judge of the Circuit Court, authorized by § 9933 of the Code of 1923, Code 1940, Tit. 7, § 1137, is jurisdictional and fatal to the proceedings. Evans v. State ex rel. Sanford,
Said § 9933 vests the power to order the solicitor to proceed in the Judge of the Circuit Court, not the court, and contemplates that he may acquire information in his own way to guide him in the exercise of the discretion in respect to ordering the solicitor to proceed. Owens v. State ex rel. Bailes, supra; Donovan v. State ex rel. Biggs, Solicitor,
The authority to order the institution of such proceeding, without security for costs, is not conferred on the Judge of the County Court of Morgan County by the act creating said court or the amendments thereof. Acts 1931, pp. 139-144.
The County Court, therefore, erred in overruling the defendant's motion to quash the writ and dismiss the proceedings. The judgment of that court is therefore reversed and one here rendered, granting the motion to quash and dismiss.
Reversed and rendered.
GARDNER, C. J., and THOMAS and FOSTER, JJ., concur.
