The record-union., 1891-12-28

A majority of the Supreme Court reply
yes" Judge Wallace answers mo-"
because, in the words of the statute,
when there is other plain, speedy and
adequate remedy in the ordinary course
of law, prohibition viii not lie. and in
this case the other remedy was appeal
after conviction of any one indicted by
the jury, the legal status OF which was
challenged.
We have taken pains to examine the
more prominent leading adjudications by
appellate courts upon this issue. In none,
1t seems 10 us, is the rule more clearly
stated than in Quinbo Apo VS.. The
People in twentieth New York reports
1t certainly is leading case. 1t is there
held that prohibition is the proper rem
edy when an inferior court goes beyond
its legal powers. That it lies, although
the court has jurisdiction, when it is pro-
ceeding to do an unauthorized or unlaw-
full act. That it is far better TO prevent
the exercise of an unauthorized power
than to be driven to the necessity of cor
recting the error after it is committed
Even where the court rightfully enter
tains jurisdiction of the subject matter is
ton will lie.
In the San Francisco case the legality
of the alleged Grand Jury was squarely
challenged, and that process of a court
was being used to make effective the acts
of body not existing in the law; that
acquiescence in such procedure would
endanger the right of defendants under
the process. In short, as Lord Mansfield
put it, it was a case in which defect or
failure of jurisdiction appeared on the
face OF the proceeding, and therefore, as
he said in similar case, proper one for
prohibition.
The Supreme Court distinctly states
that the record certified to it disclosed no
reason a0hateoer for the appointment of
an elisor; that all that appeared before it
was that the Sheriff was excluded, because
the court chose to do so; that there was no
charge of any kind made in any manner
against the Sheriff or Coroner, nor
any suggestion of the disqualification of
those officers.
On the face of the record then it ap-
peared that there was excess of jurisdic-
ton, usurpation of power, or, as stated
IN the New York case, and by all the
writers, it was case in which the court
though rightfully entertaining jurisdic-
ton OF the subject matter, was exceeding
its legitimate power. In such cases, said
Mr.. Justice Selden, one of the most en-
inent of the great jurists of New York,
prohibition will run and usurpation be
checked by it.
What is prohibition? 1t is q proven
tive, not a corrective remedy. 1t is a
writ issued out of sound judicial discre-
ton. 1t may issue in proceedings col
lateral TO the original, to stay or forbid
them, since acquiescence in them when
erroneous might prevent objection to
them after judgment.
1t is writ from a superior to an in
ferior court to arrest acts and prevent
further prosecution of them, which are
not merely ministerial, and which are in
excess of jurisdiction. It's use should be
employed in all proper cases where it is
vital to the due administration of Justice.
and it issues only in cases of extreme
danger to the right of a party involved
and when he has not other plain, speedy
and adequate remedy. Of that, the SUI
perior court, in addressing the inferior, is
the sole judge, and it exercises its dis
erection in that regard.
The writ of prohibition deals with fail
ure of, defect in, or excess of jurisdiction.
Such failure, defect or excess, must APP
pear on the face of the proceedings, as it
certainly did on the record before the
Supreme Court of California in the case
we are considering, and in such cases
prohibition will issue. It may issue at
any time, even where part of the pro-
ceedings is within the jurisdiction of the
inferior court, since it is dangerous, as
courts have put it, ito lie by and suffer
the court to go on under proceedings on
their face disclosing excess or defect of
jurisdiction" 1t issues to restrain an
unlawful judicial act even where the
court has jurisdiction, but goes beyond
its legal powers" as Justice Selden
puts it,
When a court issues process that is to
make effective the finding of Grand
Jury, it must recite that the bill is found
by legal jury. A challenge of that
legality, especially by defendants who
had not been held to answer previously,
and therefore had no opportunity to chal-
lenge the panel prior to indictment, is one
that may invoke prohibition.
Suppose a Sacramento court to issue
process under a bill presented by the
new Humane Society; the plea would be
to the jurisdiction of the court to proceed.
and if it persisted, prohibition should
issue, and the defendant not be compelled
to go to trial upon bill found by a body
unknown to the law.
In Sweet VS.. Hubert, another New
York case, reported by Barbour-and
that has not been overruled-it was held
that prohibition may issue to forbid any
proceeding in any matter pending in a
court which has jurisdiction, if the Act be
an unauthorized on. There the Legisla-
ture passed an Act authorizing town to
issue bonds 10 raise money to donate to a
railroad corporation, and named the
court to appoint bond commissioners
An application for a writ of prohibition
to check the court was made on the
ground that the Act of the Legislature
was not authorized by the Constitution,
and the suit issued. Yet unquestionably,
on suit to collect tax to pay the bonds,
any taxpayer would have had a remedy
on appeal from a judgment against him.
But Judge Wallace puts great stress
upon the allegation that there is no pre-
cedent in tbiS State for the writ in such a
case as his. For, he says, if it is admit
ted that there was excess of jurisdiction
in his court, the applicant had speedy
and adequate remedy by appeal after
judgment. (Sec. HOB, Code of Civil Pro-
cndnraA And he cites with nnnhncis,