As to the right of the proponents in the proceedings in the probate court to appeal from the order of the judge of probate dismissing their petition, if it be conceded that section 6 of the Drainage Act, which provides that "The Court of Probate of the County in which said petition is filed shall thereafter maintain and have original * * * jurisdiction co-extensive with the boundaries and limits of said district without regard to the county lines for all purposes of this act, subject, however, to the right of appeal to the Circuit Court of the County in which the petition is filed" (Acts 1927, pp. 108, 109), is a venue statute. and does not cover the right to appeal, and there is no other provision in the act that confers such right, still this section recognizes *Page 24 the right of appeal and confers jurisdiction on the circuit court, if an appeal is otherwise authorized.
Section 6114 of the Code provides: "An appeal lies to the circuit court or supreme court from any final decree of the court of probate, or from any final judgment, order, or decree of the judge of probate; and in all cases where it may of right be done, the appellate court shall render such decree, order, or judgment as the court of probate, or the Judge thereof, ought to have rendered."
In McKenzie v. Jensen, 195 Ala. 36, 70 So. 678, it was ruled that an appeal under this section would lie from an order of the probate court dismissing an escheat proceeding.
In McClurkin v. McClurkin, 206 Ala. 513, 90 So. 917, it was held that an order of the circuit court dismissing the petition of a widow to set aside homestead exemptions was a determination of the widow's right and was therefore final and would support an appeal. A like ruling was made in respect to a decree dismissing a petition for intervention. Thornton v. H. A. B. R. R. Co., 94 Ala. 353, 10 So. 442.
So in respect to a decree sustaining a motion and dismissing a bill "out of court." Schwarz, Rosenbaum Co. et al. v. Barley et al., 142 Ala. 439, 38 So. 119. And in the recent case of Smith v. Smith, 218 Ala. 701, 120 So. 167, 168, it was held that an order of court granting or denying a petition to modify an alimony decree would support an appeal. In none of these cases was anything said about the taxation of costs. But the petitioner here insists that the decree dismissing the petition is not final because it does not tax the costs against either party, citing in support of this contention Ex parte Adams,216 Ala. 241, 113 So. 235.
This contention is answered by the fact that the statute under which the proceeding was instituted makes no provision as to the items of cost taxable, but leaves this to the general law prescribing what costs are taxable in proceedings in the probate court. In this respect the act provides: "If the court at the final hearing shall find against the sufficiency of the petition or the improvement it shall dismiss the petition and proceedings at the cost of the petitioners and shall issue an itemized bill of all costs and expenses, which itemized statement of costs and expenses shall have the full force and effect of a judgment and constitute a lien upon the lands of the petitioners within said proposed district, which liens shall be of equal dignity with the lien for general state, county, city, village, school and road taxes," etc.
An examination of the record of the probate court, filed with and made a part of the petition, discloses that nothing was done in the course of the proceedings which would authorize the taxation of a single item of costs. Code 1923, § 7285. To quote the statute: "The law of fees and costs must be held to be penal, and no fee must be demanded or received except in cases expressly authorized by law." Code 1923, § 7255.
It is too well settled to require the citation of authority that the law does not require the doing of a useless or futile act. Costs not being expressly authorized for the acts performed, the rendition of a decree for costs was a useless and futile act, and under the facts of this case was not essential to the finality of the decree.
I am therefore of opinion that the decree of the judge of probate dismissing the petition was such a decree as will sustain the appeal to the circuit court under section 6114 of the Code.
Moreover, I am not in accord with the view that the taxation of costs is essential to the finality of a judgment which disposes of a case on its merits and finally determines the rights of the parties, for the simple reason, often stated, that costs are a mere incident to the proceedings, and the failure or refusal of a court to tax costs should not be allowed to stand in the way of a party's right to prosecute his appeal; that Davis v. McColloch et al., 191 Ala. 520,67 So. 701, is not supported by the authorities cited, and that case and others of like import are unsound in principle and should be overruled.
I am further of opinion that the proceeding filed in the probate court were sufficient to invoke the authority of that court to determine whether or not the proposed project was within the scope and purpose of the Drainage Act, and that court had jurisdiction and authority to determine that question; and having denied relief on the ground that the act was unconstitutional, the appeal to the circuit court conferred on that court jurisdiction to determine the merits of the proceedings; that the Supreme Court, being strictly a court of appellate jurisdiction in such matters, is without jurisdiction in this proceeding to determine whether or not said project is within the scope and purpose of the Drainage Act, and by so doing has usurped the authority of the nisi prius court, and set itself up as a court of original jurisdiction in this respect.
It is well settled by our decisions that prohibition is not a revisory writ, and should not be issued except in cases of usurpation and abuse of power, and not then unless other remedies are ineffectual. Anders et al. v. Lindsey, Judge, et al., 203 Ala. 48, 82 So. 8; Ex parte Johnson, 203 Ala. 579,84 So. 803; Goodwin, Judge of Probate, v. McConnell, 187 Ala. 431,65 So. 789; Ex parte Atlantic Coast Line R. Co., 198 Ala. 24,73 So. 418; Ex parte Hamilton, 51 Ala. 62; Ex parte Greene and Graham, 29 Ala. 52; Hill v. Wittmeier et al., 209 Ala. 355,96 So. 327. *Page 25
I think it clear, therefore, that the writ of prohibition should be denied, and respectfully dissent on this point.