State ex rel. Turner v. Bradley , 134 Ala. 549 ( 1901 )

TYSON, J.

Appeal from judgment denying writ of prohibition and dismissing the petition.

The relief sought by this proceeding is to restrain the probate judge of Lamar county from entering an or(ler upon a petition filed in his office by twenty-five bona fide residents of election precinct No. 1 of that county stating that they desire an él action in such precinct to ascertain Avhether or not a majority of the residents of said precinct desire a stock law, etc By virtue of the act entitled an act “To provide and-establish a stock law for Lamar and Fayette counties,” (Acts 1898-99, p. 689)., upon the presentation of such a petition to the judge- of probate, accompanied Avith a deposit of a sufficient sum of money to- defray -the expenses of the election' desired, it is made- his duty to file it in his office and to indorse upon it an order that an election- shall he held in the- precinct, designated in the petition, on a day to bei named in the:'order, not less than forty days from the date of filing such petition; also to canse a notice to be inserted in some newspaper published in the county of the time and place, of holding such election.

The primary question presented is Avhether the duties imposed upon the judge: of probate are of a purely judicial nature or whether they are- merely administrative or ministerial. If of the latter class, although required to he performed1 by a' judge of a court, a Avritl of prohibition Avill not lie. “The proper office of a writ of prohibition, is to restrain inferior courts or tribunals: from unauthorized judicial acts, and it cannot be used to prevent performance of ministerial acts, although performed by the judge or presiding officer of an inferior tribunal.” — 16 Ency. Pl. & Pr. p. 1102. This principle avus clearly recognized and enforced in the case of Ex parte The State, in re Pierce, 89 Ala. 177, where: it Avas held that this court Avill not aAvard a prohibition to the presiding judge of the city court, of Montgomery, to annul or prevent action under an illegal order for the discharge of a convict before the expiration of the term prescribed by his sentence, such order being a, ministerial act. In that case, before the judge could determine upon the doing of the act he Avas1 requested to do. lie- had to ascertain that the person making the application Avas- the identical person whom he had theretofore sentenced to perform hard labor to pay fine and costs, the number of days the applicant, was to labor to pay the fine, and thait he had labored those days, as well as the amount of the whole costs and the amount of such covsts upon the payment of which the applicant ivas: entitled to< his discharge. Notwithstanding, it was incumbent upon the judge' to ascertain the existence of all these matters before, he could act upon, the application presented to him, this court held, in consonance with previous decisions, that he, in certifying to- the convict’s right to a discharge, performed simply a, ministerial act. See also Kyle v. Evans, 3 Ala. 481: Atkins v. Siddons, 66 Ala. 453; Grider v. Tally, 77 Ala. 422; High on Extr. Leg. Rem. § 769. In Ex parte Braudlacht, 2 Hill, 367, cited approvingly in Atkins v. Siddons, supra, the relator, who was a defendant in the marine court, removed the cauise by certiorari to the superior court. Afterwards the plaintiff in that case applied to one of the justices of the marine court for an. execution, offering as security the refunding bond required-by the statute. The defendant thereupon applied to a circuit judge to allow a writ of prohibition which he declined.- It was insisted that the statutes gave power to order -execution to the superior court only. Also, that the bond1 was not in the form required by the statute. The court said: “If all jurisdiction were taken away from the - marine court by the certiorari, and the power to- issue execution confided by the statutes to the superior court- only, then the act of the marine court would be irregular and void; and, if it were judicial, prohibition would lie. But it is not judicial: and we might as well be called on toi prohibit a sheriff from executing a writ of replevin, because he had not taken -a bond. The office of a prohibition is to prevent courts from going beyond their jurisdiction in the exercise of judicial, not ministerial power. * * There is no color for saying that the act of issuing an execution is- judicial. The refunding bond is- to be in a certain form; and if the security is satisfactory, the courts have no more discretion in granting or denying the execution than would a clerk * in a court of record, after the expiration of the thirty days from the rendition of judgment.”

We have but to apply these principles to the acts required. of the judge of prohate against whom the writ of prohibition is sought in this case, to see that he is not required to perform any judicial act, but that the duties imposed are purely of a ministerial nature. This being true, we must decline to review, the question, whether the judge of probate in undertaking to perform the act complained of, was right or wrong. This proceeding .being inappropriate to' raise that question, it is -not in the case.

Affirmed.