Ex parte Greene

STONE, J.

The constitution of the State of Alabama (Art. V, § 2) confers on this court “ power to issue writs of injunction, mandamus, quo warranto, habeas corpus, and such other remedial and original writs, as may be necessary to give it a general superintendence and control of inferior jurisdictions.”

Prohibition is a writ, “ directed to the judge and parties of a suit in any inferior court, upon a suggestion, that either the cause originally, or some collateral matter arising therein, does not belong to that jurisdiction, but to the cognizance of some other court. * * * It also lies against inferior tribunals, when, in handling matters clearly within their cognizance, they transgress the bounds prescribed to them by the laws,” — 3 Bl. Com. 112.

This court has heretofore construed the clause of the constitution which .is copied in the opening of this opinion, and decided, that it confers power “to prohibit the chancery court, where a proper case for the exercise of this power is presented.” — Ex parte Smith, 23 Ala. 94 ; Ex parte Walker, 25 Ala. 81 .

This doctrine has been frequently under review, and it is said in some of our sister States, that “ the writ of prohibition is an extraordinary one, and should be issued only in cases of necessity, clearly shown, and where the party has applied in vain to the inferior tribunals for relief.” — The State v. Com. Ct. N. O., 4 Rob. 48 ; The State v. Judge of the 4th. Dis., 10 Rob. 169 ; The People v. S. S. Seward, judge, 1 Wend. 518 ; McMeecher Exparte, 1 Eng. 70. It is said to be in the sound, legal discretion of the court, whether or not the writ will be issued. — Bac. Abr. by Bouvier, voL 8, pp. 209-10, and authorities cited.

In the cases of Smith and Walker, supra, this court, speaking of the writ of prohibition, declared-that the power-is discretionary, and should never be exercised, except in cases where the inferior court has clearly executed its jurisdiction in the order complained of, and where the relator- has no, other adequate remedy.

*58 We may, then, safely assert, that “ prohibition ” is an extraordinary writ, only to bé resorted to when its exercise is necessary to give a general superintendence and control of inferior jurisdictions ; never to be resorted to, except in cases of usurpation or abuse of power, and not then, unless other remedies are ineffectual to meet the exigencies of the case. Some of the adjudged cases go so far as to assert, that the writ will not be issued in any case, until the party who complains of the abuse of power shall have sought redress in the inferior court, and failed to obtain it. — See McMeecher, Ex parte, supra.

On this question, w'e prefer, for the present, to remain uncommitted, further than may be inferred from the case of Smith, supra.

The relation in this case sets forth, first, that the fiat for injunction was granted by the judge of the city court of Mobile, and that he had no authority to grant such order ; secondly, that the State of Alabama is not liable to be sued in the chancery court. Other objections were urged in argument, but they are not of a character to be considered in this proceeding. Our power under this application is confined to the inquiry, has the inferior tribunal assumed to act upon a matter, or upon the rights of a party, that could not be determined, or proceeded against in that forum? Unless one or the other of these inquiries can be answered affirmatively, our investigations are at an end. The bill may abound in imperfections, may be fatally wanting in necessary averments, or may be instituted in a district in which the defendants were not liable to be sued. These, if they exist, are proper matters of defense, and cannot be reached by this extraordinary process.

■2. Another view of this case, we do not feel at liberty to overlook. This this an application for a writ of prohibition to the Hon. Wade Keyes, chancellor of the southern division of Alabama. The relation complains, that Hon. A. McKin-stry, judge of the city court of Mobile, made the order, granting the injunction. It does not appear that Chancellor Keyes has made any order in the premises, or done any act, showing that he entertains, or will entertain the cause. For aught that we cam know, on a proper application to him, he may *59 either dissolve, or so modify the injunction, as to leave nothing of which the relators will complain. ¥e are asked to prohibit him from entertaining, or proceeding in a cause, in the absence of any averred fact or circumstance, connecting him actively with the proceedings complained of. The motion must be denied on this ground alone.

If it be true that Judge McKinstry has no authority to grant writs of injunction, or that the State cannot be sued in the chancery court, the chancellor should have the opportunity of passing upon those questions, and thus making them his acts, before we can feel at liberty to assume control over him. In other words, he must either act, or manifest an intention to act, before, we can be required to control his action.

Here this opinion might close, but we will proceed to pro~ nounce upon the other questions presented above.

3. We do not entertain a doubt that the judge of the city court of Mobile was, and is, authorized to “ issue writs of injunction,” to be operative in Mobile county. The first section of the act “ to define the jurisdiction of the city court of Mobile,” approved Eeb’y 7, 1852, declares that “ the judge of said court shall have the same powers, and perform the same duties, in Mobile county, as the judges of the circuit courts of this State now have, or may hereafter be invested with.” This language is very comprehensive, and explicit; and to enable us to determine the powers of the judge of the city court, we have but to ascertain the “ powers ” and “ duties ” which the judges of the circuit courts “ have ” and “ perform. ” The constitution of the State of Alabama (Art. V, § 8) confers the power on the “judges of the several circuit courts to issue writs of injunction, returnable ' into the courts of chancery.”

4. It is contended for the relators, that the act of Feb’y 7, 1852, enlarging the powers and jurisdiction of the city court of Mobile and its judge, is but a reference statute, and that such statutes embrace only the general, not the particular powers. We admit the principle in a proper case, but cannot assent to the use sought to be made of it. The power to “ issue writs of injunction, returnable into the courts of chancery,” is one of the few grants, which the framers of the constitution, esteemed of importance sufficiently enduring, to justify its. *60 incorporation into the organic law. This must certainly be regarded as one of the general powers of the judges of the circuit courts.

5. It is urged in this case that, even under this construction, the judge of the city court had no authority to grant the injunction as against the defendants who reside without the limits of Mobile county; his power being confined to that county. The fault of the argument consists in the supposition, that power was executed beyond the limits of Mobile county. The bill was filed in that county, and the judge did nothing more than to grant a fiat, directed to the register of the chancery court of the first district; the court for which district is by law established, and holds its sessions, in said county. This he had power to do, but could grant no such order in any case pending in a court not holden in Mobile county.

6. Whether a State or .sovereignty could, at the common law, and without the aid of statute, be sued in its own courts, is a question not free from difficulty. In the Magdalen College case, 6 Rep. 67, the doctrine settled goes very far to show that, when a contest as to mere property rights, springs up between the king and a subject, the king is as much under the law as the subject is ; and it is said, the same rule prevails, whether he claim the property as king, or in his private capacity. In Curran v. The State of Arkansas, 15. How. S. C. R. 304-309, it is said, that a State, by engaging in a contract, lays down its sovereignty, so far as respects the particular transaction. See, also, an elaborate view of this question, in the same case, 7 Eng. (Ark.) Rep. 321 ; and see the authorities on the briefs of the counsel in that case. State of Miss. v. Johnson, 3 Cush. (Miss.) 625.

On the other hand, the doctrine is asserted in many adjudged cases, that a sovereign State cannot be summoned to the bar of its own tribunals, except as the law may expressly provide. — Delafield v. State of Illinois, 2 Hill’s N. Y. 169 ; Garr v. Bright, 1 Barb. Ch. Rep. 157 ; Hosner v. Young, 1 Texas, 764 -769; Nathan v. Com. of Va.,1 Dallas, (Penn.) 78.

In the case in 6 Rep. 67, the sovereign was not a party to the proceedings ; and hence that case is not an authority directly on the point, that a suit could have been maintained *61 against him. So, the case in 15th How. Sup. Ct. rests the jurisdiction on the fact, that the supreme court of Arkansas had decided, that the suit in that case was rightly brought against the State ; the question, as it is there said, being one of local law, depending on the constitution and statutes of the State. So, in most of the cases which assert the doctrine that States or sovereignties cannot be sued, the question either did not arise directly, or arose in relation to some other State than that in whose court the suit was pending. The case of Hos-ner v. Young, supra, carried the doctrine further than any other adjudged case which has fallen under our observation.

In the State v. Curran, the right to sue the State is based on a very liberal construction of the statute of Arkansas.

Under the English chancery system, the practice seems to have prevailed, when the interests of the "government were involved in the litigation, of making the attorney-general a party, because he was the proper public officer of the government. — Story’s Eq. PL, § 222 ; Cooper’s Eq. PI. 22 ; Mitf. Eq. PI. 21-2, and authorities cited. We have found no case in which that government was directly made a party.

The constitution of the State of Alabama (Art. YI, § 9) provides, that “ the general assembly shall direct by law, in what manner, and in what courts, suits may be brought against the State.” The Code, (§ 2138,) obeying this constitutional injunction, has directed that “,a citizen of this State, or domestic corporation, may bring suit against the State of Alabama, in the circuit court of the county in which he resides, or in which such corporation is located ; which must, in all respects, be governed by the same rules as suits between individuals.” Section 2139 directs how and by whom the interest of the State is to be represented ; and section 2140, how judgment, if rendered against the State, is to be satisfied.

The legislature having thus complied with the requirements of the constitution, and directed that suits “ may be brought against the State in the circuit court,” the writer of this opinion is satisfied that we have no power to disregard their direction ; and that a suit brought against the State in any other court, is without authority. To hold otherwise would be to violate, not to obey the law. — Gedney v. Inhabitants of Tewksburv. 3 Mass. 307 .

*62 It is argued, that this construction will lead to great inconvenience, and may result in a denial of justice to this class of litigants. This argument may force on us the duty of indulging all reasonable intendments in furtherance of the remedy provided, but will not justify a palpable disregard of the statute. If a remedy be needed, it must be sought elsewhere.

It is not for us to define, in this proceeding, the extent of jurisdiction conferred on the circuit courts, over suits against the State. Nor can we now decide whether the complainants below have any, and what redress ; or whether, if they have been wronged and seek redress, the State is a necessary party to such proceedings. The entire merits of the controversy, and the forum for its adjustment, save as herein decided, must be left open for consideration, when they shall be properly brought before us.

For the reasons above set forth, the writ of prohibition is refused.

On the question, whether the State of Alabama can be sued in chancery, my brothers prefer to remain, and therefore do remain, uncommitted.