State ex rel. Bryan v. McDuffie

JUDGE, J. We think it clear that the county court had no jurisdiction of the proceeding against the relator, as the jurisdiction of that court is confined by statute to the trial of misdemeanors only. The proceeding seems to have been instituted under section 4167 of the Revised Code, which provides that “ any sheriff who fails to execute a writ of arrest, from the want of due diligence, to be determined by the court, may be fined one hundred dollars, or less, on one day’s- notice; and if such fine is not paid, may be imprisoned in the county jail for not more than two months.” The following facts, we think, clearly show that this section of the Code was never intended to apply to the county court, and confers no jurisdiction upon it, viz.: The section is found in article 4, chapter 8, of the Code, which chapter relates exclusively to proceedings in the circuit and city courts ; ” constables are not included in its provisions and made liable to its provisions, who, alike with sheriffs, are authorized to execute warrants of arrest returnable to the county court. Process of [6] arrest of the county court is styled by the Code “ warrant of arrest,” and not “ writ of arrest,” the latter term being applied to process of arrest from the circuit or city court issued after indictment found in said courts. But it is contended by counsel that an inherent power exists in all courts to punish for a contempt of its authority; that this power, although restricted by our Code, is recognized by it as being vested in all the courts of this State ,• that the proceeding in question was naught but a proceeding to punish for a contempt, and that the court having jurisdiction for that purpose cannot be legally arrested in its action by the writ of prohibition. Section 4167 of the Code was not intended to provide a mode of punishment for a contempt of the process of the court. Previous provisions of the Code had covered the whole ground upon the subject of contempts of court. But that section was intended to provide for the summary infliction of a penalty upon a sheriff, who, “ from the want of due diligence,” had failed to execute a writ of arrest. In the proceeding against the relator no question of contempt was involved; it was simply an effort on the part of the county solicitor to recover, for the use of the county, a penalty alleged to have been incurred by the relator '■'■from the want of due diligence as sheriff." If, however, as contended, a contempt was involved in the proceeding, the court was exceeding the bounds of its jurisdiction, and the writ of prohibition “ lies against inferior tribunals, when, in handling matters clearly within their cognizance, they transgress the bounds prescribed to them by the laws.” 3 Bla. Com. 112; Hx parte Greene & Graham, 29 Ala. 52. No statute exists providing for the infliction of a penalty upon sheriffs and constables for failing to execute warrants of arrest returnable to the county court,'from the want of due diligence ; and perhaps some legislation is necessary upon that subject. The relator, having no other adequate remedy, is entitled to the relief he asks. Let the judgment of the circuit court be reversed, and a peremptory writ of prohibition be issued from this court, as prayed for by the relator. Let no costs be imposed upon the judge of the court to whom the prohibition is issued.