State ex rel. Almon v. Burke

MAYFIELD, J.

This was an application by the state, on relation of D. C. Almon, its solicitor for the Eighth judicial circuit, and his county solicitor for Cull-man county, to Hon. D. W. Speake, judge of the Eighth judicial circuit, for a mandamus to Hon. Robt. I. Burke, judge of the county court of Cullman county, to compel the said judge of the county court to reinstate upon the docket of the county court of Cullman county divers criminal causes for violation of the prohibition laws of this state, particularly mentioned in the petition for mandamus, Avhich are alleged to have been unlawfully nol. pros’d by the said county court, without the consent or request of the circuit or the county solicitor, and over their protest, and to compel the said judge to proceed with the trial of said causes. The circuit court, after several preliminary orders and amendments of pleadings unnecessary to consider, on motion of the respondent, quashed the alternative writ and dismissed the- petition, from which judgment and order the petitioners appeal to this court and assign various errors.

It is not only unnecessary, but improper, for us on this appeal to pass upon the merits of the petition or the assignments of error. We know of no law authorizing the solicitor, or any other person or officer, other than the Attorney-General of the state, to institute a proceeding like this, in the name or in the relation of the state, or in his own name. It is proper here to say that the petitioners have precedents for such proceedings; but in none of these cases was the question raised or passed upon, and it appears to have here escaped the attention of counsel and of the court. In the one case in which the question was passed upon — which was a case identical with the one at bar — Brickell, C. J., we think properly, held that suits like the one at bar could only be instituted on the relation of the Attorney-General. See Ex parte state (In re Stephenson), 113 Ala. 85, 21 South. 210. In this case that learned judge said: “Whether the state has an interest in the vacation of the order made in a criminal case by a court of competent jurisdiction, or whether there shall be a prohibition of the exercise of jurisdiction, or any other remedial writ prosecuted by the state, at all times a matter of more or less gravity, the law commits to the judgment and discretion of the Attorney-General, and, when he proceeds, he must proceed in the name of the state.”

This question was raised in the court below, and is jurisdictional; and although the trial court seems to have based its order upon another gnound, yet the judgment and order was correct, and cannot be reversed for that reason.

The judgment is affirmed.

Tyson, C. J., and Simpson and Denson, JJ., concur.