it was error for the circuit court to dismiss an (ing been taken by the county court. Spivey appeal by the objectors; the judgment of the and the other school directors filed an afficounty court having become final at the close davit for appeal to the circuit court within of the term. the time prescribed by the statute. The circuit court should have heard and determined

Appeal from Circuit Court, St. Francis their appeal. County; J. M. Jackson, Judge.

[1] In Brandenburg et al. v. State, 24 Ark. Objections by W. A. Spivey and others, as 50, the court held that the county court acts School Directors of a common school district, judicially in adjusting the accounts of an into the report of George P. Taylor, as County ternal improvement commissioner, and has no Treasurer. From a judgment of the circuit power to set aside its judgment after the court dismissing their appeal from a judg-lapse of the term. In Desha County v. Newment confirming the report, the School Directors appeal. Reversed and remanded.

man, 33 Ark. 788, it was held that as a general rule county courts, like circuit courts, have no power to set aside, vacate, or modify The report of Geo. P. Taylor, as county their judgment after the close of the term at treasurer, was approved by the county court, | which they are rendered, unless provision is and at the same term W. A. Spivey and oth-made therefor by statute. The general rule is ers, as school directors of a common school that courts of record lose control over their district in St. Francis county, filed objec- judgments after the lapse of the term, and in tions to his report on the ground that it fail- the absence of a statute conferring such powed to show an amount of money which he had er cannot, at a subsequent term, alter or vareceived belonging to said school district. cate them. Malpas v. Lowenstine, 46 Ark. The treasurer filed a reply, denying the alle- 552; Brady v. Hamlett, 33 Ark. 105; Kersh gations of the petition. The court continued v. Lincoln County, 36 Ark. 589; Joyner v. the cause until another day of the same term Hall, 36 Ark. 513; Johnson v. Campbell, 52 for further testimony. The term lapsed with- Ark. 316, 12 S. W. 578; Terry v. Logue, 97 out the petition having been heard, and with- | Ark. 314, 133 S. W. 1135; Corning v. Thompout the order confirming the treasurer's set- son, 113 Ark. 237, 168 S. W. 128. tlement having been set aside. Spivey and [2] In the present case the county court did the other school directors filed an affidavit not set aside the judgment confirming the for appeal to the circuit court within the six treasurer's accounts, and its judgment be months prescribed by the statute. The coun- came final at the close of the term. Therety treasurer made a motion in the circuit fore Spivey and the other directors had the court to dismiss the appeal, which motion right to appeal from the judgment. If the was by the court granted. From the judg-court had desired to continue the cause until ment rendered in the circuit court, Spivey and the other directors have duly prosecuted an appeal to this court.

J. W. Morrow and Henry G. Gatling, both of Forrest City, for appellants.

a subsequent term, without the judgment becoming final, the judgment should have been set aside, so as to keep the cause within the control of the court. This view of the law was recognized in Haley v. Thompson, 116 Ark. 354, 172 S. W. 880. There the proceed

Mann, Bussey & Mann, of Forrest City, for ings were had under section 7174 of Kirby's appellee.

Digest, providing, in substance, that, when any error shall be discovered in the settlement of any county officer with the county court, it shall be the duty of the court at any time within two years from the date of such settlement to reconsider and adjust the same. The court held that relief under this statute did not prevent the taxpayer from be

HART, J. (after stating the facts as above). The court erred in dismissing the appeal. The county court allowed Spivey and the other directors of the common school district to file objections to the report of the county treasurer on the ground that he had failed to account in his report for certain money belonging made a party to the settlement of the ing to the school district. This was done at the same term at which the report had been filed and approved. Without opening the judgment confirming the report, the court continued the cause to a subsequent day of the same term for further testimony. The term lapsed without any further action hav

county officer and having his settlement corrected upon appeal to the circuit court.

It follows that the court erred in dismissing the appeal of Spivey and the other school directors, and for that error the judgment must be reversed, and the cause remanded for further proceedings according to law.

(222 S.W.)

J. F. Gautney and Lamb & Frierson, all of 2. Prohibition 3(5)-Lies where remedy by Jonesboro, for appellee. appeal is available, but inadequate.

7. Highways142-Certiorari does not lie plaint in the proceedings below and the other to review assessments.

pleadings are exhibited with the petition.

The circuit judge appears here by counsel, and files a response in which he admits that he has issued the writ of certiorari, as alleged, returnable to the circuit court, but de

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

nies that the writ was heard or issued by the court, or that the petitioner herein had ap peared before the court for the purpose of objecting to the issuance and hearing of the writ, and alleges, on the contrary, that the petition for a writ of certiorari was presented to the circuit judge at chambers in vacation, and was heard by him, and that the writ of certiorari, and also the temporary injunction, were issued by him in vacation, returnable to the circuit court to be heard by that court in term time. The judge also alleges in his response that the matters and things set forth in the complaint in the proceedings below are within the jurisdiction of the circuit court, and he denies that he exceeded his jurisdiction in granting the certiorari and Injunction.

In the case of Finley v. Moose, 74 Ark. 217, 85 S. W. 238, 109 Am. St. Rep. 74, we stated the same rule with reference to the office of the writ of prohibition, with the following qualification:

"If the existence or nonexistence of jurisdiction depends on contested facts which the inferior tribunal is competent to inquire into and determine, a prohibition will not be granted; though the superior court may be of opinion that the questions of fact have been wrongly determined by the court below, and that their correct determination would have ousted the jurisdiction."

So it is thus settled that where it appears that an inferior court is about to proceed in a matter over which it is entirely without jurisdiction under any state of facts which may be shown to exist, then the superior court exercising supervisory control over the inferior court may prevent such unauthorized proceedings by the issuance of a writ of prohibition. The essential thing is that it must be shown that the inferior court is about to proceed beyond its jurisdiction, and that fact is said to be the jurisdictional one upon which the right of the supervisory court to issue the writ of prohibition depends.

[1] The first question which arises for our decision is whether or not prohibition is the appropriate remedy and is available to the petitioner under the circumstances of this case. The facts, when reduced to the simplest form, as bearing on this particular question, are that the plaintiffs in the action instituted in the circuit court appeared before the circuit judge in vacation for the purpose of procuring the issuance of a writ of certiorari to bring up the proceedings of the board of commissioners of the improvement district, and to obtain an injunction to restrain further proceedings by the commissioners of the district, until the cause could be heard in the circuit court; that the commissioners, as the representatives of the district, appeared by counsel before the circuit judge at the hear-in support of their contention the case of ing, and objected to the exercise of jurisdiction by the court; and that a writ of certiorari, and also of temporary injunction, was issued by the judge over the protest of the petitioner.

The scope of the writ of prohibition is too well known to be in doubt. In the recent case of Ferguson v. Martineau, Chancellor, 115 Ark. 317, 171 S. W. 472, Ann. Cas. 1916E, 421, this court quoted with approval the following statement of the law from a wellknown text-writer on the subject:

"The writ of prohibition is that process by which a superior court prevents an inferior court or tribunal from usurping or exercising jurisdiction with which it has not been vested by law." Spelling on Injunctions and Extraordinary Remedies, § 1716; Shortt on Informations, Mandamus and Prohibition, p. 436.

[2] It is contended by counsel for the respondent that the remedy by prohibition not being an absolute one, but discretionary, the writ should be denied where there is a remedy by appeal or otherwise, even though the court sought to be restrained was about to proceed beyond its jurisdiction. They cite

Weaver v. Leatherman, 66 Ark. 211, 49 S. W. 977. This contention is based upon a misconception of the effect of the ruling in the case just cited. If the absence of the right of appeal was essential to the issuance of a writ of prohibition, then that remedy would be entirely unavailable in any case; for, under our Constitution, the right of appeal is granted in all judicial proceedings. The true test is, as stated in the case already cited, whether or not the court is proceeding beyond its jurisdiction, and when that state of facts is shown to exist the remedy by prohibition is the appropriate one. A litigant is not bound to submit to the exercise of jurisdiction not authorized by law, even though he has the right of appeal after the exercise of the jurisdiction has been consummated nu has resulted in a judgment from which he

The last-named text-writer, at the place in- can appeal. The remedy by appeal is afforddicated, laid down the rule as follows:

"The broad governing principle is that a prohibition lies where a subordinate tribunal has no jurisdiction at all to deal with the cause or matter before it; or where, in the progress of a cause within its jurisdiction, some point arises for decision which the inferior court is incompetent to determine. But a prohibition will not lie where the inferior court has jurisdiction to deal with the cause and with all matters necessarily arising therein, however erro

ed from an unjust judgment, whether it be void or merely erroneous (Pritchett v. Road Improvement District, 219 S. W. 21); but the remedy by prohibition is afforded as a protection against a wrongful attempt to exercise jurisdiction unauthorized by law. The two remedies are independent, and one may be invoked where the other cannot be, and prohibition may be invoked under circumstances where the remedy by appeal is avail

(222 S.W.)

and that any sort of plea to the jurisdiction of the court will justify the issuance of a writ of prohibition. State ex rel. Butler v. Williams, 48 Ark, 227, 2 S. W. 843.

In Ruling Case Law, vol. 27, the following is stated to be the rule of procedure established by the authorities:

Again, it is urged by counsel for respondent that this is an attempt to control the action of the circuit judge, and they invoke the doctrine that the remedy by prohibition is available only to prevent the exercise of jurisdiction by a court and not by a judge. In the case of Reese v. Steel, 73 Ark. 66, 83 S. W. 335, 1136, we expressly left undecided the question whether or not prohibition was the appropriate remedy against judicial or quasi judicial action of a judge in vacation, and whether or not the remedy was confined to the control of judicial action by a court. Nor is that question involved in the present case. The action of the circuit judge has in the present case completely accomplished its purpose in the issuance of the writ, and the present effort of the petitioner is to control the action of the circuit court, and to prevent it from proceeding in a matter alleged to be entirely beyond its jurisdiction. It is true that in the petition filed here it is alleged that the court issued the writ and is about to hear and determine it, and that the court also issued an injunction, and it is shown by the respondent that this allegation is not true with respect to the issuance of the two writs; but the facts, as shown by the peti-inferior court to act beyond its jurisdiction is tion and the response thereto, are that the

writ of certiorari is returnable to the circuit

court, and that that court is about to proceed to an adjudication of the matters and things involved in that controversy. Now this entitles the petitioner to the remedy prayed for here, unless other grounds appear for the denial of the remedy.

[3] The response raises the question of the right of the petitioner to this remedy without first appearing before the circuit court and objecting to the exercise of jurisdiction. It is conceded that the petitioner appeared before the circuit judge and made objection to the exercise of jurisdiction and that the judge overruled the objection. It appears from the exhibits to the pleadings here that the circuit judge made a written order expressing his opinion that the circuit court had jurisdiction to entertain the proceedings, and in his response here the learned judge auheres to his conclusion that the circuit court has jurisdiction of the cause. But it is insisted that the petitioner must first appear be fore the court itself and make the protest there in term time, notwithstanding the ineffectual protest before the judge who granted the writ and who is the presiding judge of that court. This court in many decisions has adhered to the rule that as a matter of practice a writ of prohibition will not be issued, unless objection to the exercise of jurisdiction is made to the court in which the proceedings are pending. Reese v. Steel, supra. The court has never had occasion to state the exceptions to that rule, or to declare whether or not there are in fact any exceptions. It has been decided here, however, that the form of the exception is immaterial,

not be issued to an inferior court unless the "As a general rule, a writ of prohibition will attention of the court whose proceedings it is sought to arrest has been called to the alleged lack of jurisdiction, the foundation of the rule being the respect and consideration due to the lower court and the expediency of preventing unnecessary litigation. This requirement is made by rule of court in some jurisdictions. The objection in the lower court cannot be said to be jurisdictional, and the higher court may and will proceed without such objection in only, and is not in any sense rigid or arbitrary. Thus no objection in the court sought to be prohibited need be made where the proceeding is ex parte and there was no opportunity to object; where the applicant was prevented by artifice or fraud from making objection; where the lack of jurisdiction is apparent on the face of the proceedings; where the intention of the

proper cases.

The rule is one of discretion

made apparent in any way, and it is obvious from the whole proceedings that such an application would be futile; or where the necessary delay would be highly injurious to the interests of the applicant. The matter of judicial courtesy should yield to substantial personal rights of litigants, such as a sacrifice to their liberty."

Numerous authorities are cited in support of the rules thus stated.

Particular attention is called to that part of the foregoing statement of the law to the effect that the objection to the exercise of jurisdiction by the lower court is not a jurisdictional fact upon which the power to issue a writ of prohibition depends, but is merely a rule of discretion. This, we think, is the correct view of the matter; and it will necessarily follow, under this rule, that where it is obvious that an objection made to the court itself would be futile, and would result in unnecessary or hurtful delay, this ought to and does form an exception to the general rule of discretion that, before a writ of prohibition can be asked for, objection to the exercise of that jurisdiction must be made to the court. This exception is well sustained by the authorities. See case note to St. Marys v. Woods, 21 Ann. Cas. 168; City of Charleston v. Littlepage, 73 W. Va. 156, 80 S. E. 131, 51 L. R. A. (N. S.) 353; State ex rel. v. Aloe, 152 Mo. 466, 54 S. W. 494, 47 L. R. A. 393; State ex rel. v. Bright, 224 Mo. 514, 123 S. W. 1057, 135 Am. St. Rep. 552, 20 Ann. Cas. 955; Havemeyer v. Superior Court, 84 Cal. 327, 24 Pac. 121, 10 L. R. A. 627, 18 Am. St. Rep. 192.

In the case of State ex rel. v. Bright, supra, the Supreme Court of Missouri, after

40 per cent. of the assessed value of the property, instead of 30 per cent., and amending the statute creating the district in other respects. The statute, as a whole, describes the boundaries of the district, the route of the roads to be improved, names the commissioners and the authority to construct the improvement, to borrow money and collect assessments on the benefits accruing to the lands, and provides for a board of assessors to value the anticipated benefits, and the filing of the list of assessments with the county clerk, and the publication of notice of the time and place of the meeting of the commissioners for the purpose of hearing complaints against said assessments.

having noticed the fact that it was not shown (amendatory statute raising the limitation to that any exceptions had been made to the lower court, said that the appearance of the judge in that court, joining with the parties to the litigation in affirming the right of the court to proceed with the case, that this rendered it unnecessary for the petitioner to appear before the court for the purpose of challenging the jurisdiction. This rule was, in effect, applied by our court in the case of Russell v. Jacoway, 33 Ark. 191. In that case an election contest over the removal of the county seat was involved, and the circuit judge granted in vacation a writ of certiorari to bring up the proceedings in the county court for review, and the adverse parties appeared before the circuit judge and opposed the application for want of jurisdiction of the subject-matter. It was not shown that there was any objection made in the circuit court, but this court granted the writ of prohibition and vacated the writ issued by the circuit judge. We think that this rule is founded on sound reason, for it only affects the discretion of the court, and is, at most, only a rule of practice. Why then should the petitioner be required to go before the circuit court to make an objection to the exercise of jurisdiction where it is morally certain that the objection would be unavailing? Since the circuit judge has deliberately overruled an objection to the jurisdiction, and comes into this court now maintaining that the court over which he presides and before which this cause will come on for hearing, unless restrained, has jurisdiction of the subject-matter, there is no ground for assuming that he will change his mind and sustain the objection to the jurisdiction when the circuit court convenes. Our conclusion, therefore, is that the petitioners are entitled to a writ of prohibition if, as a matter of fact, the circuit court is about to proceed beyond its jurisdiction, and that is the next question to which we will address ourselves.

The statute creating the district contains a provision in section 14 that the "construction cost of the improvements of the road herein called for, not including interest on borrowed money, shall not exceed in cost thirty per cent. of the values of all lands and real estate and real property in the district, as shown by the last county assessment"; and the question was brought to this court for decision whether or not this applied to the last county assessment preceding the passage of the statute, or to any county assessment made prior to the assessment of benefits, and we decided that it applied to the assessment preceding the passage of the statute. Watson v. Boydstun, 216 S. W. 721. It was shown in that case that the cost of the construction would exceed 30 per cent. of the values of lands according to the county assessment, and the General Assembly at the special session in January, 1920, enacted an

Section 13 provides that"any party who may have complained in writing of any of said assessment of benefits or damages, and who feels aggrieved by the action of the commissioners after the hearing herein provided for; any other person whomsoever who may have any objections to any assessment of benefits or damages, or to any other proceedings under this act or action of the commissioners, shall file his complaint thereof ten days after the hearing by the commissionin the chancery court having jurisdiction within ers herein provided for, and any party not complaining within that time shall be deemed to have waived any objections that he may have to any of said assessment of benefits or damages, and shall not be heard to complain in law or equity thereafter."

The complaint in the proceedings sought to be prohibited alleges, in substance, that the assessment of benefits had been made and filed with the county clerk, and notice thereof given, and that all of the plaintiffs in that proceeding had appeared before the board of commissioners herein named, and objected to the alleged assessments on the ground that no valid assessment had been made as provided by the statute; that the assessment list was "a mere jumble of words and figures and to a great extent meaningless," and that it is unintelligible. It is further alleged that the plans adopted by the commissioners contemplate two sets of improvements, one a drainage system and the other the construction of the roads, which would require two separate assessments. Various other matters are alleged in the way of threatened proceedings by the board of commissioners not authorized by the statute. The prayer of the complaint was that the plans adopted by the commissioners and the assessment list be brought to the circuit court on certiorari, and that on final hearing the same should be quashed. The prayer of the complaint was also that the contract for the construction of the improvement and the sale of bonds be enjoined.

It is manifest, therefore, from the language of the complaint that injunctive relief is sought against the proceedings undertaken