[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 611 This is a proceeding in this Court to review an order made by the Board of Appeals, Division of Unemployment Compensation Commission, Department of Industrial Relations of the State of Alabama. See Title 26, Code of 1940. The petition is for certiorari.
Without an issuance of the writ, the Attorney General of the State and counsel for the Department of Industrial Relations for the Division of Unemployment Compensation of that Department have appeared and filed in this Court an answer to the petition, and in it admit the allegations of fact contained, but deny the conclusions of law therein set out, and attach to their answer a certified copy of the proceedings, decisions and actions of the Board of Appeals in this matter, including the evidence taken in the cause and all supporting papers and documents.
The cause was submitted in this Court on oral arguments of counsel for the petitioner and for the respondents, and on elaborate briefs directed to the merits of the ruling by the Board of Appeals, and in no respect do the respondents question the jurisdiction of this Court to review as by certiorari the order of the Board of Appeals without the issuance of the writ. A review here will not require the issuance of a writ. Such attitude of the respondents is a waiver of its issuance, and a submission to the jurisdiction and power of this Court to the extent that an agreement may expressly do so, and with as much effect.
But this Court can only act within the jurisdiction conferred by law, and this cannot be enlarged by waiver or the consent of the parties. Such jurisdiction is thus expressed in section 140, Constitution: "Except in cases otherwise directed in this constitution, the supreme court shall have appellate jurisdiction only, which shall be coextensive with the state, under such restrictions and regulations, not repugnant to this Constitution, as may from time to time be prescribed by law, except where jurisdiction over appeals is vested in some inferior court, and made final therein; provided, that the supreme court shall have power to issue writs of injunction, habeas corpus, quo warranto, and such other remedial and original writs as may be necessary to give it a general superintendence and control of inferior jurisdictions."
And as far as here pertinent in the Code of 1940, Title 13, section 17(3), "To issue writs of injunction, habeas corpus, and such other remedial and original writs as are necessary to give to it a general superintendence and control of inferior jurisdiction."
But this Court has consistently held that there is no"necessity," under the Constitution and law to issue such a writ to give general superintendence and control of inferior jurisdictions "if there is any court, *Page 613 inferior to this, which possesses the authority to afford to the petitioner relief as ample as this court could grant," but in such circumstances the petition should be made to the inferior court, with the power in this Court to review its judgments in the manner provided by law. Ex parte Russell,29 Ala. 717; Ex parte Town of Roanoke, 117 Ala. 547, 23 So. 524; Ex parte Pearson, 76 Ala. 521; Ramagnano v. Crook, 88 Ala. 450,7 So. 247; Christopher v. Stewart, 133 Ala. 348, 32 So. 11; Ex parte Giles, 133 Ala. 211, 32 So. 167; Ex parte Davis, 170 Ala. 114,54 So. 164; Code of 1940, Title 7, §§ 1072-1080, section 765, Title 13, section 182.
The law not only confers on this Court the right to issue writs necessary to exercise general superintendence over inferior jurisdiction, but also confers on circuit courts the authority to exercise general superintendence over all inferior jurisdictions, — Title 13, section 126, — and circuit judges may issue writs of certiorari, — Section 182.
We doubt not that this Court in its authority of general superintendence to review by certiorari is governed by the same restrictions as is a circuit court. Compare Alabama Power Co. v. City of Fort Payne, 237 Ala. 459, 187 So. 632; Ex parte Louisville N. R. R. Co., 176 Ala. 631, 58 So. 315; Woodward Iron Co. v. Bradford, 206 Ala. 447, 90 So. 803; 4 Alabama Dig. p. 437, and Pocket Supp. p. 23, Certiorari, 57.
But it is said that a board of state-wide jurisdiction, not limited to any county or district in its field of operation, is not an inferior jurisdiction to the circuit court with a field of operation limited to a circuit. Could an application for certiorari be granted to such a state board by the circuit court of any county in the State? An appeal is allowed to the circuit court of the residence of the claimant. Title 26, section 221, Code of 1940. But this claimant is a nonresident of Alabama.
In Alabama Power Company v. City of Fort Payne, supra, we reversed the Circuit Court of Montgomery County for not issuing a writ to review a state board, but this question was not raised nor considered. And in Ex parte City of Birmingham,199 Ala. 9, 74 So. 51, this Court considered and reviewed by certiorari the records and proceedings of the Alabama Public Service Commission without any question of its authority to do so. It is said in Dunbar v. Frazer, 78 Ala. 529, that if the legislature confers appellate and supervisory power on the circuit court, it is reasonable to infer that the intention is that the exercise of such authority shall be confined within the limits which restrict the exercise of its original jurisdiction.
But we have sustained the power of a circuit court to review by certiorari the ruling of a state board or commission (Alabama Power Co. v. City of Fort Payne, supra), and have recognized the right of such court to issue mandamus to it in a proper case (Ex parte Lewis, 236 Ala. 82, 181 So. 306; Lewis v. Gerald, 236 Ala. 91, 181 So. 306), when the circuit court doing so had original jurisdiction in the county where such board or commission had its principal place of business, though we did not emphasize that as the reason for doing so. We do not doubt that the Circuit Court of Montgomery County would have power to give such review to the order here in question, but we do doubt such authority of the circuit court of a county in which it did not sit, to hear the matter in controversy. But whether that circumstance withdraws jurisdiction from this Court to give such review, depends upon whether there is a "necessity" for this Court to act although the Circuit Court of Montgomery County may have such jurisdiction.
The necessity is not wholly dependent upon whether some court inferior to this has the legal power by certiorari to review the order in question. See Ex parte Boynton, 44 Ala. 261. But the rule observed elsewhere with a similar provision of the constitution seems to be that the higher court will not take jurisdiction where the application can be made to a lower court, unless for special reasons complete justice cannot otherwise be done, as where the case is of more than ordinary magnitude and importance to prevent a denial of justice or where no application can be made to the lower court in time to prevent the consummation of the alleged wrong. 14 Corpus Juris Secundum, Certiorari, p. 204, § 57. That authority cites Halliday v. Jacksonville, etc., Plank Road Co., 6 Fla. 304. The report of that case quotes the constitution of Florida in identical language as our section 140, supra, as here material, and observes: "It is not doubted, but that under the latitude given by the said proviso, a writ of certiorari will lie from this Court to any of the inferior jurisdictions, whenever an appropriate case may be presented, or it shall become necessary for the attainment of justice." *Page 614
We do not think that the requirement of the Constitution that we shall issue such writs only when necessary to give us a general superintendence fixes an iron-clad rule that we cannot do so when another court inferior in grade to us has a like power.
While we hold that the Circuit Court of Montgomery County may review by appropriate remedial writs the boards and commissions of the State sitting in Montgomery, we also think that this Court may do so when in our judgment it is necessary to afford full relief and do complete justice. An exercise of such discretion will receive more favorable consideration when the interested parties appear and virtually agree that there is such necessity by submitting the cause without making the objection that there is an absence of it. We have the right to determine whether a necessity exists, influenced by the magnitude and importance of the question involved, and the convenience of the parties in presenting it, rather than in first going to the Circuit Court of the county where the board sits.
On account of the importance of the question here involved, its state-wide application, the need of an early decision, the territorially restricted jurisdiction of the circuit court and the consent of the parties, we have concluded in the exercise of our power and discretion to give consideration to the merits of the question and make decision of it.
GARDNER, C. J., and THOMAS and LIVINGSTON, JJ., concur in the foregoing feature of this opinion.