
    Kelton, Judge, et al. v. Tavel.
    
      Prohibition.
    
    (Decided June 29, 1911.
    Rehearing denied Dec. 21, 1911.
    56 South. 1021.)
    
      Prohibition; Relief; Remedy in Equity. — As prohibition is a. remedy to prevent a court from exceeding its jurisdiction, and then only when the fact of its doing so is a matter of law, determinable on the inspection of the record, it will not lie to the probate court to prevent its further entertainment of proceedings by a railroad, corporation to condemn a right of way through a dwelling; that court having jurisdiction of condemnation proceedings, and a corporation regularly organized as a railroad corporation having power to condemn such property, having proceeded regularly and the remedy as to any special equity arising because of the organization of the railroad being a fraudulent attempt to appropriate the dwelling to a really private use, being of equitable cognizance.
    Appeal from Blount Circuit Court.
    Heard before Hon. E. C. Crowe.
    Prohibition by Zanie Tavel to prevent John F. Kelton as judge, and others, from entertaining proceedings for condemnation. From an order to show cause why the petition should not be granted, the judge appeals-
    Reversed and rendered.
    A. Leo Op.erdorfbr, for appellant.
    The objection that mineral lands cannot be condemned in such proceedings is untenable. — 10 A. & E. Enc. of Law 1101; Sec. 3484, Code 1907. The right of appeal cannot be denied. — Ex-•parte Campbell, 130 Ala. 171; Mayfield v. Court of County Commissioners, 148 Ala. 550. Defects in the organization of a corporation renders the charter voidable, but not void, and hence, it may not be avoided except by the state on direct proceedings. — State, ex rel. v. Jebeles ct Colias, 150 Ala. 515; Gelders v. The State, 51 South. 232; 148 N. Y. 520. The allegation that the railroad company was not regularly organized is unwarranted by the facts alleged, and as a matter of law and a matter of fact, it is a regularly organized railroad company with the powers of condemnation. — 66 L. R. A. 387; 47 N. J. L. 43; 6 L. R. A. Ill; 46 N. W. 75; 18 N. W. 659; 88 Am. St. Rep. 918; 34 L. R. A. 368; 50 Am. St. Rep. 508; 84 Am. St. Rep. 722. Its incorporation cannot be collaterally attacked in this proceeding. —Authorities supra, and Goodwyn, Judge v. The State, 145 Ala. 536. Even if it could be raised in this proceeding, the question is a judicial one, and cannot be reviewed here. — 1 Mayf. 736; 32 Cvc. 617. Counsel discusses the right of the railroad company to condemn the curtilage of the garden, and cite authorities in support of his contention, but in view of the opinion it is not deemed necessary to set them out.
    A. Latady, for appellee.
    Where the answer discloses that the subject of condemnation safeguarded by section 3489, is about to be invaded, the jurisdiction of the probate court is special and limited, and ought to be supported only where every fact necessary to such jurisdiction is averred and proven. — McOulley v. Gunning-ham,, 96 Ala. 583. The constitutional requirement of the right of private property, requires that the powers granted to a corporation be strictly pursued, and all prescribed conditions performed. — 104 N. Y. 1; Neb. 416; 55 Barb. 45. There was non conformity with the essential requirements of the governing statute, first, because the terminal points of the alleged road was not mentioned — Sub-division 8, sec. 3446, Code 1907; London v. Sample L. Co., 91 Ala. 608; second, the names of the officers were not given in the certificate. — Subdivision 6, sec. 3446, Code 1907; third, the proposed subject of condemnation was within the protection of section 3187, Code 1907, even as amended by Acts 1909, p. 19. — Cook v. The State, 83 Ala. 62; Fisher v. The State, 43 Ala. 17; see generally, 208 Pa. 81; 166 Pa. St. 430; 131 Pa. St. 437; 119 Pa. St. 287. The petitioner has not estopped herself through any relations with the fraudulent corporation, and should have the right to meet her adversary squarely in this proceeding. — ().'& C. C. Co., 121 Ala. 341. Prohibition is the proper remedy. — B. B. & F. Co. v/. Traction Co., 121 Ala. 475.
   SIMPSON, J.

This appeal is from an order of the judge of the circuit court for Jefferson county for a rule nisi to the Judge of the probate court for Blount county, to show cause why a writ of prohibition should not be issued, prohibiting further prosecution of certain condemnation proceedings before said probate court. L. K. Moss, C. L. Moss and D. H. Brown, incorporators of the Warrior Mineral Railroad Company, and John H. Donoho, W. F. Fendley, and Robert Fowler, commissioners appointed by said probate judge, and said Warrior Mineral Railroad Company, are also made parties and -included in said writ.

The petition alleges the incorporation of said Warrior Mineral Railroad Company, “setting out in their said alleged certificate of incorporation that they proposed to construct and operate a railroad for the carriage of passengers and freight between Linton Junction, and a point on the Louisville & Nashville Railroad, near the line of Jefferson county, Ala., by the nearest, most satisfactory, practicable, and feasible route, through the S. W. 4 of the S. E. % of section 5, in township 14 S., range 2 W., to a point in the S. E. % of the S. E. 14 of section 4, in township 14 S., of range 2 W., and to acquire rolling stock and other personal property, incident to the operation of a railroad, and arrogating to themselves thereby the right to condemn lands for purposes of rights of way.” The petition cites certain defects in the certificate of incorporation, such as that the termini of the railroad are no.t stated; that, while the names of certain parties are given as the officers chosen for the first year, -yet it is not shown what particular ■office each holds, etc.

The gravamen of the petition is that, although said corporation has been formally organized as a .railroad ■corporation, under the statutes of Alabama, yet that it was not organized in good faith to carry passengers and freight, but merely as an adju.nct to a certain mining corporation, owned and controlled by the same persons, for the purpose of evading the statutes of Alabama, under which no corporation except a railroad corporation can condemn á right of way through the •curtilage of a dwelling house, said line being projected so as to run through the dwelling house of petitioner, and that, although section 3875 of the Code of 1907 provides for an appeal from an order of condemnation, jet, as section 3876 provides that the order of condemnation shall not be suspended if the money be paid into court and a bond given as required, petitioner’s dwelling house would be destroyed before she could prosecute the appeal.

“A prohibition is a remedy against an encroachment of jurisdiction, issued only from a superior court, is granted on the suggestion that the court to which it is directed has not the legal cognizance of the cause, and it is directed to the judge of the inferior court, as well as to the parties in the cause”; while an injunction “neither assumes any superiority over the court * * * * nor denies its jurisdiction, but is granted on the sole ground that from certain equitable circumstances, of which the court that issues it has cognizance, it is against- conscience for the party to proceed in the cause.” —1 Spelling on Extraordinary Relief, p. 50, § 40; 2 Spelling on Extraordinary Relief, p. 1395, § 1716.

“The writ of prohibition lies only when the inferior court proposes to exceed its lawful jurisdiction, as to the person or subject-matter, or in the enforcement of its rulings in a manner or by a means not intrusted to its judgment or discretion.” “Injunction never questions the jurisdiction of the court, nor is addressed to the court; it only lies against the parties. Prohibition, on the contrary, takes no notice of the parties, ignoring for the most part any interest they may have in the matter forming the subject-matter of the grievance, and goes directly against the court.”- — 2 Spelling on Extraordinary Relief, p. 1936, §§ 1716-1718.

The writ cannot issue for every illegality in the proceeding of an inferior court. “But there is a distinction in this connection between the defect of jurisdiction arising in pais, and such as are matters of law, and hence determinable upon inspection of the record. The general rule is that the writ of prohibition will not issue to restrain an inferior judge from doing an act when he has prima facie jurisdiction.” — 2 Spelling, Extra. Rem. p. 1404, § 1724.

Accordingly, where the Southern Railway Company sought to condemn the tracks of a street railway, and the point was made that the statutes do not authorize such jurisdiction, it was held that, as the court had jurisdiction “of proceedings for the condemnation of property to public use, it therefore had jurisdiction of the subject-matter,” and the writ was refusel. — State ex rel. Union Depot Railway Co. v. Southern Railway Co., 100 Mo. 59, 61, 13 S. W. 398.

“The sounder doctrine, and that sustained by the great preponderance of authority, is to. the effect that prohibition only lies where the court either lacks jurisdiction of the subject-matter, or, having jurisdiction, exceeds it in some incidental matter, or in rendering judgment, and no appeal or writ of error or other remedy is available at all, or'if available is inadequate to meet the emergencies of the case, or to afford the redress to which the injured party is entitled.” — 2 Spelling,.' Extra. Rem. pp. 1004, 1405, § 1725.

In a case wherein.it was sought to prohibit the circuit judge from proceeding in a mandamus case against a probate judge, this court said: “The circuit court has original jurisdiction of the remedy by mandamus against inferior officers. * * * Invested, as it is, with this general jurisdiction to hear and finally determine the application in question, and as we are not able to affirm, from anything brought to our view by the record, that it has, or is about to abuse, in any- wise, the jurisdiction so conferred, we must leave it to the exercise of its jurisdiction to the final determination of the case, from which final determination any one feeling aggrieved thereby may pursue such revisory remedies as the law may provide. We will not inquire, on petition for prohibition, into the merits of the controversy before the circuit court in the mandamus proceeding further than to see that the court is proceeding within, and is not, in any way, abusing the exercise of its jurisdiction.. — Ex parte Due, 116 Ala. 491, 493, 23 South. 2.

Without further multiplying authorities, we hold that the probate court has jurisdiction of condemnation proceedings; that a company regularly organized as a railroad company, having the power to condemn the curtilage of a dwelling house, having proceeded regularly in said court, it was proceeding in the regular course of its jurisdiction, and the circuit judge should not have issued the writ of prohibition.

If there were equitable circumstances, such as that the organization of the railroad company was a fraudulent attempt, under the forms of law, to appropriate the dwelling house of the petitioner to a .really private use,, that is a matter more appropriate to a proceeding in equity, and not to the common-law writ of prohibition.

The case of Birmingham Railway & Electric Co. v. Birminghmn Traction Co., 121 Ala. 475, 478, 25 South. 777, 779, is entirely in accordance with the principles above announced. The gravamen of that case is that a court of equity, in injunction proceedings, will not determine the question of the jurisdiction; but, if said probate court is exceeding its jurisdiction, the remedy is by writ of prohibition, and the court of equity will not “restrain a party to a cause in another jurisdiction, a.t the instance of the opposing party, from having the court to proceed to a final adjudication in the absence of some special equity, not cognizable by the court trying the cause.” (Italics ours.)

Of course Ave do not decide Avhether there is a “special equity” in this case, Avhich Avould Avarrant a court of equity to interfere, as that question is not before us, but only that, if the appellee has a special equity, his remedy is in a court of equity.

The judgment in this case is reversed; and a judgment will be here rendered, discharging the rule nisi granted by the judge of the circuit court.

Beversed and rendered.

Doavdell, C. J., and McClellan and Mayfield, J. J., concur.  