(dissenting.) I find myself unable to concur in the opinion of the majority of the court, and, owing to the importance of the questions involved, deem- it proper to give formal expression of my views.
I think that the writ of prohibition will lie against a judge who is proceeding to act judicially in a matter over which he has no jurisdiction. The office of the writ is to restrain the exercise of judicial of quasi-judicial acts where no jurisdiction exists.
It is too well settled for argument that acts of a court or judge purely ministerial, administrative, or executive in their character can not be controlled or restrained by this writ. 23 Am. & Eng. Enc. Law, p. 204; High, Extr. Rem. § § 764a, 769 and 782; Shortt on Mand. & Pro. p. 439, and cases therein cited.
The converse is equally true, that all judicial or quasi-judicial acts beyond jurisdiction, whether attempted by a court or judge, may be restrained by the writ. 23 Am. & Eng. Enc. Law, p. 206; High, Extr. Rm. § 764a; State v. Young, 29 Minn. 523; State v. Field, 112 Mo. 554.
In Russell v. Jacoway, 33 Ark. 192, where there was a petition to this court for writ of prohibition against a circuit judge to restrain him from improperly issuing in vacation a writ of certiorari and supersedeas to the county court in a county seat contest, it was held that the remedy was proper, and the writ was granted.
In State v. Young, supra, the rule is stated that “the writ of prohibition issues usually to courts to keep them within the limits of their jurisdiction. But it may also issue to an officer to prevent the unlawful exercise of judicial or quasi-judicial powers.”
And the doctrine is fully stated in High’s Extraordinary Legal Remedies, § 264a, as follows: “The appropriate function of the remedy is to restrain the exercise of unauthorized judicial or quasi-judicial powers. * * * And the remedy may be invoked against any body of persons or officers assuming to exercise judicial or quasi-judicial powers, although not strictly or technically a court.”
No authorities are mentioned in the majority opinion in conflict with those cited herein, and I have been unable to find any, and I see nothing in the phraseology of the Constitution, where jurisdiction is conferred upon this court to issue the writ, to alter the general rule established by these authorities.
I concur in all said by the Chief Justice as to the necessity that, before the remedy can be sought here, objection must have been made below to the .proceeding complained of; that is too well settled by the authorities generally, and also by the repeated decisions of this court, to be open to further question. But I do not understand that this rule requires that the record must show affirmatively that specific objection was made to the jurisdiction, nor can I agree that the record in this case does not show sufficient objection below. It does appear from the record that the petitioners were present by attorneys and objecting when the proceedings complained of were had before the circuit judge, and we must presume that they made proper objection to each step in the proceedings by him not within his jurisdiction and not authorized by law. I quite agree with the majority in their conclusion that the appeal was allowable to the remonstrants from the judgment of the county court ordering the removal because they had substantially complied with all requirements in making themselves parties to the record, though, strictly speaking, the court had not made them parties before the rendition of the judgment of removal; and for the same reason I think that the record shows substantial compliance by the petitioners with all the requirements as to objection below to the proceedings against which they seek relief here. To hold otherwise is, I think, to put form above substance, and to stretch beyond all proper limits the reason for the requirement in this respect, and to reduce it to the level of a mere technicality.
I am in accord with the opinion of the majority that a statutory supersedeas bond is not effective, and has no application to a judgment of this kind. I think this is true for several reasons, but chiefly for the reason that the terms of a statutory appeal bond were not designed to meet the conditions of a case of this sort, but are to cover judgments in suits of an adversary kind where the appellant is personally affected thereby, and where his bond will protect his adversary from injury by reason of the appeal. One who injects himself into a public controversy, such as the removal of the county seat, and malees himself a party to the court proceedings, has the right of appeal, but he can not stay the proceeding simply by giving a bond which has no force whatever, and makes him liable for nothing in the event of a breach. I agree with the majority in holding that the appellate court, or the judge thereof in vacation, has the inherent power, in aid of its appellate jurisdiction, for the purpose of preserving the status quo of the parties, to grant a stay of further proceedings. The authorities to sustain this are abundant. 20 Enc. Pleading & Pr. pp. 1237, 1252, and cases therein cited.
But the power should be exercised with great care only after a sufficient examination of the facts to ascertain that a great injustice will be done, and the fruits of a successful appeal will be lost, unless the enforcement of the judgment appealed from be stayed. An interesting and instructive discussion of this subject may be found in the opinion in the case of State v. Board of Education, 19 Wash. 8, and the editor’s notes thereto, as reported in 67 Am. St. Rep. p. 714.
The operation of writs of stay and supersedeas granted by appellate courts is limited to such judgments as are- not self-executing, and have no effect upon self-executing judgments, for the reason that there is nothing upon which the stay can operate where the judgment executes itself and becomes effective ex proprio vigore. Elliott, App. Proc. § § 392, 393.
This brings me to a discussion of the most important difference between the views of the majority of the court and my own, viz: whether or not the judgment of the county court, or any part thereof, declaring the result of the election and ordering the removal of the county seat is self-executing. The majority hold that only that part of the judgment which declares the result of the election and fixes the future county seat is self-executing, and I contend that the whole of the judgment is self-executing, except the provision for building the new courthouse.
The Constitution lodges in the county courts of the State exclusive jurisdiction over the “internal improvements and local concerns of the respective counties” (art. 7, § 28), and this jurisdiction is potential for the management of all internal concerns. The power is conferred by statute (chapter 37, Sandels & Hill’s Digest) upon county courts to order elections and declare the result thereof in contests for the removal of county seats. And the manifest duty of the county court is to effectuate the will of the people as expressed at the ballot box in such contest by accomplishing the removal as speedily as practicable. To this end it is within the power of the court to provide a temporary place at the new site for holding the courts within the county until the new building can be erected. It was expressly held by the court in the case of Hudspeth v. State, 55 Ark. 323, that the county court had this power. To the same effect see Lee v. State, 56 Ark. 4. .
To illustrate the necessity for the exercise of the power in some instances, it might occur that at the time of the removal the county might be without a court house at the old county seat. Indeed, such a state of affairs might be one of the causes that prompted the citizens to vote a removal. Who will say that under that state of facts it would not only be within the power, but the duty, of the court to provide a temporary place for holding court at the new county seat?
I am persuaded that that part of the judgment of the county court which declares the result of the election to be in favor of a removal of the county seat to Nashville, as well as that part which provides a temporary house within which the courts are to beheld until the new court house shall be completed, were self-executing and went into full effect eo instanti, and, under the rule herein-before set forth and established by the authorities, could not be superseded either by a statutory bond or by an order of the circuit court or judge in aid of the appellate jurisdiction of that court. The part of the judgment providing for the erection of a new court house was not, in my opinion, self-executing, and could have been stayed by an order of the circuit judge.
Opinion delivered January 7, 1905.So far as the orders of the county court concerning the removal of the county records, I think that was surplusage, as it became the duty of the officer to follow the legal situs of the county. It required no act of the county officers to'.effect the removal, as that was fully accomplished when the county court by its judgment declared the new location.
The authorities cited by counsel for petitioners fully bear out, I think, their contention and the views herein expressed, and illustrate the distinction between judgments which are self-executing and those which are not. Elliott, App. Proc. § 391; Hamilton v. Tucker County Court, 38 W. Va. 74; Walls v. Palmer, 64 Ind. 493; State v. Meeker, 19 Neb. 444; People v. Stephenson, 98 Mich. 218; State v. Mayor, 28 Neb. 110; Fawcett v. Superior Court, 15 Wash. 342.
For these reasons I think that the writ of prohibition should be issued to the circuit judge, and also the writ of mandamus to the chancellor requiring him to hold his court at Nashville.