Pope v. Colbert

Simmons, Chief Justice. Pope presented to the judge below a petition for a writ of prohibition against the county judge of Taylor county, in which he alleged that he had been duly elected sheriff’ of that county, and that he had executed and filed his bond as such sheriff, as by statute provided, but that the .county judge was endeavoring to have an election held in-the county for sheriff, and had issued an order to that effect, declaring therein that a- vacancy exists in the office because of petitioner’s failure to give bond and qualify as sheriff of the county. -He. prayed 792 that the writ of prohibition issue, directed to the county judge, directing him to abstain from proceeding further to cause said election. The petition contained other allegations, to the effect that the county judge has no jurisdiction and'power over the election, bond and qualification of petitioner, as county, judge or otherwise; but in the view we take of the case it is unnecessary to consider these allegations. Whether the county judge originally had authority to pass such an order or not, and if so whether it was rightly passed or not, it is certain that after the order was in fact passed, he had no further jurisdiction or control over the matter. The election having been ordered, the matter had passed out of his hands, and a writ of prohibition would therefore have no office to perform. The wilt 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. (Code, §3209(a); 19 Am. & Eng. Enc. of Law, “Prohibition,” p. 264.) The court below-did not err, therefore, in refusing to grant the writ prayed for. Judgment affirmed.