Summary
In Jacks v. Jefferson County Board of Health, 219 Ala. 156, 121 So. 552, the appellant, on June 4, 1928, filed his petition for a writ of mandamus to compel a County Board of Health to issue to him a permit to continue his dairying business which had on that day been stopped by the Board through a prohibitory interdict.
Summary of this case from State v. JonesOpinion
6 Div. 212.
April 4, 1929.
Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.
Hugh A. Locke and Erle Pettus, both of Birmingham, for appellant.
The statute gives to petitioner for mandamus the specific right to amend his petition. Code 1923, § 8978; Garrett v. Cobb, 199 Ala. 80, 74 So. 226; 38 C. J. 904; Fountain v. State, 211 Ala. 586, 100 So. 892. The court has inherent power to preserve the status quo pending final determination of the matter in a case of this character. 7 R. C. L. 1033.
James H. Willis, Horace C. Wilkinson, and Hollis O. Black, all of Birmingham, for appellee.
It is not error for the trial court to dismiss petition for writ of mandamus seeking to compel issuance of a permit for a term which has already expired. State v. Board, 19 Ala. App. 528, 98 So. 654; State v. Lyons, 143 Ala. 649, 39 So. 214; Agee v. Cate, 180 Ala. 522, 61 So. 900; Foshee v. State, 210 Ala. 155, 97 So. 565; Ex parte Richardson (Ala. Sup.) 58 So. 909; 26 Cyc. 149. An amendment seeking writ of mandamus to compel issuance of permit for year July 1, 1928, to July 1, 1929, is a complete departure from original petition seeking to compel issuance of permit for year July 1, 1927, to July 1, 1928, and is properly disallowed. Ex parte Ala. Marble Co., 216 Ala. 272, 113 So. 240.
June 4, 1928, appellant filed his petition for the writ of mandamus to compel the Jefferson county board of health forthwith to inspect petitioner's dairy and issue to him a permit to continue his dairying business which on that day had been stopped by a prohibitory interdict issued by the board. By appellant's petition it appeared that he had been doing business without a permit since July 1, 1927; that he had applied for a permit after that date, which had been arbitrarily refused. July 20, 1928, appellant amended his petition alleging that since its filing he had procured a purchaser for his dairy; that said purchaser had applied for a permit which was denied with the statement by the board of health that no inspection would be made of his place of business nor any permit issued until "this case" had been finally determined on appeal by the Supreme Court. July 27, 1928, defendant board of health moved the court to dismiss this petition, and that motion was granted on that date upon the ground, as we understand, that the period of time for which the appellant sought a permit had then expired and that the case was moot. It appears that the license year runs from June 30th to June 30th.
It would have been, on the date of the court's final order, viz. July 27, 1928, and would now be, obviously vain and useless, to issue a writ commanding that appellant be given a permit to carry on his business from June 30, 1927, to June 30, 1928. Nor does the amendment of July 20th mend matters, for that amendment sought relief different from that sought in the original petition, viz. a permit for business during a different period, and, in fact, for the benefit of a different person, viz. the alleged purchaser of petitioner's business. Courts will not undertake to adjudicate moot cases nor cases to arise in the future. "It is well settled that a court will never entertain a suit to give a construction or declare the rights of parties upon a state of facts which has not yet arisen, nor upon a matter which is future, contingent and uncertain." 1 Corpus Juris, p. 973, § 68, note.
Affirmed.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.