We granted certiorari to review the order entered in the Court of Appeals on April 8, 1958, enjoining I. S. O'Dell and others "* * * from making and entering into any contract or agreement, oral or written, whereby the rate of interest upon the loan or forbearance on money, goods, or things in action exceeds the rate of $6 upon $100 for one year, or whereby the rate of interest by written contract exceeds the sum of $8 upon $100 for one year, or exceeds that rate for a greater or lesser sum or for a longer or shorter time; * * *."
The history of the litigation is as hereafter summarized.
On December 9, 1957, a bill was filed in the Circuit Court of Calhoun County, in Equity, by the State of Alabama, on the relation of its then Attorney General, John Patterson, against I. S. O'Dell and numerous other respondents, some natural and others corporate. Simply stated, so far as here pertinent, the prayer of the bill is for injunction, temporary and permanent, against respondents, and each of them, enjoining them, and each of them, from continuing in the "loan shark business," to use the language of the bill, on the ground that the manner in which such businesses are conducted constitutes a public nuisance.
When the bill was presented to Judge Longshore he entered an order setting January 14, 1958, as the day for hearing the application for temporary injunction. At the request of the State, this hearing was not held on January 14, 1958. The hearing was continued until February 20, 1958. The State caused a number of persons to be summoned as witnesses for the hearing on February 20, 1958, but there was no hearing on that date on the State's application for temporary injunction, although the Attorney General and his Special Assistant implored the court to proceed with such hearing.
Instead, over the State's protests, the court heard arguments in regard to demurrers which the respondents had filed previously. At the conclusion of the argument on the demurrers the court stated:
On March 6, 1958, Judge Longshore, before whom the demurrers had been argued, caused the following statement and decree to be entered:
On March 14, 1958, I. S. O'Dell and the other respondents mentioned in the decree quoted above appealed to this court from that decree and on March 24, 1958, said cause was duly entered on the dockets of this court as a pending case and was designated as 7 Div. 400. It was argued and submitted in this court on January 13, 1959. We are this day entering a decree affirming the decree of the trial court. See O'Dell v. State of Alabama ex rel. Patterson, Ala., 117 So.2d 164.
Thereafter on April 8, 1958, the State of Alabama applied to the judges of the Court of Appeals for a temporary injunction as prayed for in the bill of complaint filed in the circuit court. On the same day, without notice to I. S. O'Dell or to any of the other persons who were respondents in the equity court, an order was entered in the Court of Appeals, a part of which is quoted at the beginning of this opinion. The entire order will be set out in the report of the case.
On April 14, 1958, I. S. O'Dell and the other persons affected by the writs of injunction issued out of the Court of Appeals filed a motion in the Court of Appeals asking that court to set aside and vacate its order or decree of April 8, 1958, on the ground that it was without jurisdiction in the premises for several reasons not here necessary to delineate. The Court of Appeals promptly denied the motion to set aside and vacate in an opinion which reads [117 So.2d 156]:
We ordered the issuance of a writ of certiorari to the Court of Appeals on April 17, 1958, and stayed the operation of the writs of injunction issued by that court upon execution of bond by the petitioners in this court.
The cause was argued and submitted here on May 26, 1958. It has not been disposed of prior to this time for the reason that we felt it advisable to await the submission of 7 Div. 400, the appeal from the decree overruling the demurrers to the bill for injunction.
We conceived it to be our duty under the provisions of § 140 of the Constitution to issue the writ of certiorari in order to determine the question of the jurisdiction of the Court of Appeals to issue the writs of injunction. Section 140 of the Constitution provides in part: "* * * provided, that the supreme court shall have power to issue writs of injunction, habeas corpus, quo warranto, and such other remedial and original writs as may be necessary to give it a general superintendence and control of inferior jurisdictions." Ex parte Louisville & N. R. Co., 176 Ala. 631, 58 So. 315.
Section 89, Title 13, Code 1940, provides:
The Court of Appeals has no appellate jurisdiction in cases involving injunctions. See Taylor v. Shoemaker, 34 Ala.App. 168, 38 So.2d 895, certiorari denied 251 Ala. 601, 38 So.2d 900. Since the Court of Appeals does not have appellate jurisdiction in injunction matters, the provisions of § 89, Title 13, supra, cannot be said to give to the Court of Appeals authority to order the issuance of the injunctions with which we are presently concerned.
We are aware of no other statutory provision which gives to the Court of Appeals, as distinguished from the judges of that court, the right to issue writs of injunction.
Section 91, Title 13, Code 1940, gives to the judges of that court the authority to issue writs of injunction "subject to the limitations prescribed by law," which includes the limitations provided in § 89, Title 13, supra. The provisions of § 91, Title 13, supra, and those of § 89, Title 13, supra, were parts of the act which created the Court of Appeals. Act No. 121, approved March 9, 1911, General Acts 1911, p. 95. Those sections should be considered and construed together.
Sections 1038 and 1045, Chapter 28, Title 7, Code 1940, read:
The Court of Appeals in its per curiam opinion written in connection with its denial of the motion to vacate and set aside the order of April 8, 1958, said [117 So.2d 157]: "Under code 1940, T. 7, § 1038, this court is given general injunctive powers." That section does not confer any power upon the Court of Appeals and the authority thereby conferred on the judges of the Court of Appeals is limited by the provisions of § 1046, Title 7, which reads:
True, the judges of the Court of Appeals are not mentioned in § 1046, Title 7, supra, but it is inconceivable that the Legislature intended for the judges of the Court of Appeals, which court does not even have appellate jurisdiction in injunction cases, to have the authority to issue injunctions in the same manner as would a judge of a nisi prius court, while the judges of this court have no such authority. The references to the judges of the Court of Appeals were inserted in the statutes now designated as §§ 1038 and 1045, Title 7, Code 1940, by the 1923 Code Commissioner. But those words were omitted from the provisions now codified as § 1046, Title 7, Code 1940. In our opinion the omission was inadvertent. We hold that the words "judge of supreme court" as used in § 1046, Title 7, Code 1940, must be construed as including a judge of the Court of Appeals. Any other construction would lead to a most unreasonable and illogical result.
We are in complete disagreement with the construction placed on § 1045, Title 7, in the per curiam opinion of April 14, 1958, which we have heretofore set out. That section has consistently been interpreted by the members of this court as limiting our authority to issue temporary injunctions to those instances where there has been a prior refusal of injunction by a nisi prius judge. There is nothing in the language of that section which would justify a different conclusion insofar as the judges of the Court of Appeals are concerned.
We are likewise in disagreement with the conclusion reached by the Court of Appeals to the effect that Judge Longshore's action was tantamount to a refusal of the State's application for a temporary injunction. Judge Longshore has never endorsed his refusal on the bill and § 1047, Title 7, Code 1940, provides: "When an application for an injunction is refused, the officer to whom the same is made must endorse his refusal on the bill and sign his name thereto."
We are constrained to observe that the State was entitled to a hearing on its application for a temporary injunction within the time prescribed by the applicable statute (§ 1054, Title 7, Code 1940) or a refusal properly endorsed on the bill. § 1047, Title 7, supra. The remedy which the State should have pursued was an application in this court for a writ of mandamus to Judge Longshore. See In re Western Grain Co., 265 Ala. 111, 89 So.2d 532. There was another remedy available to the State. If it was dissatisfied with Judge
As we have heretofore observed, the order of April 8, 1958, appears to us to have been court action as distinguished from an action of the judges of the court. However it is our view that the order was void whether it be considered court action or judge action for the reason that neither the Court of Appeals nor any of its judges, under the applicable statutory provisions, had authority to order the issuance of the injunctions. The Court of Appeals, being a statutory court, of course has no inherent authority to order the issuance of a writ of injunction under the circumstances here prevailing. See Ex parte Wilkey, 233 Ala. 375, 172 So. 111.
The views which we have expressed make it unnecessary for us to consider the insistence of petitioners to the effect that the Court of Appeals and the judges thereof were without authority to order the injunctions issued because the ruling on the demurrers had been appealed to this court.
We hold that the order of April 8, 1958, was void for the reasons heretofore discussed. It follows that the writs of injunction issued in pursuance to that order are likewise invalid. A decree will be here rendered to such effect.
Writs of injunction issued by Court of Appeals on April 8, 1958, vacated set aside and held for nought.
LIVINGSTON, C. J., and SIMPSON, STAKELY and GOODWYN, JJ., concur.
COLEMAN, J., concurs in the result.