Opinion
15211.
JULY 3, 1945.
Prohibition. Before Judge Camp. Johnson superior court. March 24, 1945.
Lester F. Watson and E. L. Rowland, for plaintiffs in error.
J. Roy Rowland, contra.
1. Before the writ of prohibition should issue, there must be some pending action or proceeding upon which the writ could apply and prohibit some act of a judicial tribunal, from exercising jurisdiction over matters not within its cognizance, or from exceeding its jurisdiction in matters of which it has cognizance.
2. A petition predicated upon the issue of title to a public office, and praying for the writ of prohibition, and that a defendant be prohibited and restrained from acting as such public official, can not be held to state a cause of action for injunctive relief, for the reason that injunction is not a primary remedy to determine the question of title to public office.
No. 15211. JULY 3, 1945.
W. J. Crawford and F. G. Mayo filed a petition, in which they alleged that they were citizens and taxpayers of a certain militia district in Johnson County, and were also the duly elected and qualified constables of said district; and that R. R. Martin, who was justice of the peace in said district, had sought to appoint another constable under the terms of the following order:
"Georgia, Johnson County. It appearing to the court that there is a manifest injury or delay to the business of the justice court of the 1201 Dist. G. M. said State and county, I hereby appoint R. O. Bridges special constable for said district, upon his giving the bond as said constable, as provided by law. This the 21st day of February 1945. R. R. Martin, Justice of Peace 1201 Dist. G. M. Johnson County, Georgia."
It was further alleged that R. R. Martin had no authority to issue such order, for the reason that Clayton Lord, a notary public and ex officio justice of the peace was older in point of service and did not agree to such appointment and has made no such appointment; that the plaintiffs are faithfully and efficiently discharging their duties as constables, and there was no reason to require the appointment of a third constable, and such appointment for an indefinite term is illegal and without authority of law; that said Martin, as justice of the peace, is delivering to R. O. Bridges warrants, writs, and processes issued from his office, and these papers are being served by said Bridges as constable; that said acts of both Martin and Bridges are without authority of law; and that both threaten to continue said acts. The prayers were: (a) for the writ of prohibition; (b) that Martin be prohibited and restrained from recognizing and using Bridges as a constable; (c) that Bridges be prohibited and restrained from further acting as constable; and (d) for process. A rule nisi was issued. The defendants filed a general demurrer, which was overruled, and exceptions pendente lite were preserved. An answer was filed, but upon the hearing there was no material issue as to the facts as set forth in the petition. The court passed an order granting the writ "as a matter of law and as prayed in the original petition." The defendants excepted to the overruling of the demurrer and to the order granting the relief prayed for.
Construing the petition, with the view of determining whether it sets forth a cause of action for the writ of prohibition, it is clear that no proper cause is pleaded for that remedy. Prohibition is the counterpart of mandamus. It is to restrain subordinate courts and inferior judicial tribunals from exceeding their jurisdiction, where no other legal remedy or relief is given. Code, § 64-301. It is a writ to prevent a tribunal possessing judicial powers from exercising jurisdiction over matters not within its cognizance, or from exceeding its jurisdiction in matters of which it has cognizance. City of Macon v. Anderson, 155 Ga. 607 (2) ( 117 S.E. 753); Jackson v. Calhoun, 156 Ga. 756 ( 120 S.E. 114); Wright v. Wood, 178 Ga. 273 ( 173 S.E. 138); Dover v. Greer, 180 Ga. 45 ( 178 S.E. 297). In reference to the order of the justice of the peace appointing the constable, this had been executed and had passed out of his hands, and a writ of prohibition would therefore have no office to perform, in so far as the order itself was concerned. "The writ of prohibition lies to `arrest' or prevent the performance of an official act unauthorized by law, but does not lie to relieve against the consequences of such an act." Pope v. Colbert, 95 Ga. 791 ( 22 S.E. 703). In so far as the averments of the petition seek the writ of prohibition, to have the justice of the peace cease delivering the described official documents to the new constable, and to have the new constable cease serving the various documents, it appears that the allegations are general and no specific and definite act relating to any pending action or proceeding is alleged. In Jackson v. Calhoun, supra (p. 759), it is stated: "It may be safely held that it is only when there is something in the nature of the action or proceeding that makes it apparent that the rights of the parties litigant can not be adequately protected by any other remedy than by the writ of prohibition that the writ should be granted." Before the writ of prohibition should issue, there must be some pending action or proceeding upon which the writ could apply and prohibit some act of a judicial tribunal from exercising jurisdiction over matters not within its cognizance, or from exceeding its jurisdiction in matters of which it has cognizance. Prohibition can only operate to restrain a pending action or proceeding. Mealing v. Augusta, Dudley, 221.
If the petition and prayers be construed as an attempt to secure the relief sought by an injunction, there would be no proper cause of action pleaded, as the proceeding is predicated upon the issue of title to a public office, and injunction is not a primary remedy to determine that question. Davis v. Dawson, 90 Ga. 817 (3) ( 17 S.E. 110); Moore v. Dugas, 166 Ga. 493 (5) ( 143 S.E. 591); Davis v. Matthews, 169 Ga. 321 ( 150 S.E. 158); Sweat v. Barnhill, 170 Ga. 545 ( 153 S.E. 364). Nor is there any contrary ruling made in Patten v. Miller, 190 Ga. 105, ( 8 S.E.2d 776), or in Cummings v. Robinson, 194 Ga. 336 ( 21 S.E.2d 627), as in each of those cases there were allegations to the effect that the party sought to be enjoined was interfering with the petitioners in the actual performance of their official duties, while no such allegations are made in the instant case.
Accordingly, the court erred in overruling the demurrer; and further proceedings in the case were nugatory.
Judgment reversed. Bell, C. J., Jenkins, P. J., Duckworth and Wyatt, JJ., concur.