The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1891-01-24


tend to right and equity; and eonda.H.ss =
who, either cut OF pleasure 10 show $ s.a. n
VIII destroy, or ont Of incufiousnes.1 so - p
gence, VIII not labor 10 support the ~ inssxt
party by the art or act Of the Iasv. fisss 2 I'll
1t is to prevent an act, not reat,irir.s. ~ ~
done Therefore, there are blt twee ~ 70
writS that are applicable either .rsae1f
prohibition. MnIie both writs accnrs-5ssss1
same result aud have some points ~ -. - q
ity in these extraordinary processas stn'lr
ing "the extraordinary remedy ~ taeg
equity" yet both have one eornmo, ~ q.
the restraining OF legal ,,rrcae a vq'.c4
The vital difference Is 49,
injunction is directed only b. - ss q
litigant; while prohibition IS dirastss pa'fa
tribunal. writ OF injunction afeets = z q
uals, writ OF prohihitional tribunals ~ 1asls
Rem, section rs; The writ OF prohy,s..;;ska e
preventive, rather than a curstiys s's 80 q
and issues TO prevent the eommission ~ ~
a s ana l n3t 70 nhao an an act ALREADY y
the jurisdiction Is limited to cases wL..sS:
necessary to give a general ia
over inferior tribunals fThS
Meecham on Public Offices. chapter IN n
iore, the remedy on principles must 6 Vi,
But ii Is commended that no autho-;tx
found that viii authorize the issuing ~ "a -
of prohibition in the Case al bar Wh,is ~
may be no direct authority applicable a.
Ike the one at Bar, u does not necessary, n
tfftI -
moment we viii examine the author;fs.s e
contention j., the commission being rrsss.li ~
the constitution, the same power Thar -.
the superior court, both are eonaI- ~ (
commission j not an inferior tribunal. ~,
writ of prohibition only lies to an ~; 5rs =
tribunal. Is not the commission an ; ;ss1s
tribunal2 An inferior tribunal Is se s'i.s
term as eOntradisIinguished to 4 sn,ss
tribunal. The test is that the '.inferior srskss
shall, when questioned, show thai Il -.
i'm Frls a f.~rA
rior'' general Jurisdiction is presumed n,+s 4
contrary appears. Halves Jnrsd Of Conr sa ~ Y.
y, e.
Briefly we give our attention to the uranc.,4..
that the harbor commission is erestsS n g
constitution. Conceding il is, neyerfhsis.:. y. y
acting by virtue of the net OF the IsS;.issm..s
Article Il is not selfexecutng, ssit mersIs ssE
Gates principles without LAYING down ,,,,s 49,
which those principles may be given the lnr~. x
law Cooley, Cost, Linn, 9Th Ed, la0l
- before the constitutional rvc.4.s
can be made effeetual, supplemental lec;si.s
must he had" The constitution ren,irsd =
legislature to enact laws on the suk;sef ~
legislature might never do So The hss.-t
the constitution had only moral iorces ~
until the legislature voluntarily e5scfss - =, -
was the right insured. Ibid, 9Th Ed. al
is not the creation OF the commission X y
constitution similar TO the creation III ~
justice OF the peaceg "The iegislsfTre ~
provide Tor the appointment d
commission, ana us duties shall n
etc. lArtiele ISL 1.-THE legisIafnrr ~
determine the numbers OF the iustices n =
peace and shall prescribe their duties st. ~
4, see. 10l True, in the case OF the corlr1Is<i.
the constitution prescribes the duty. i a.
other the legislature shall prescribe tie d1ss
but in either case their jurisdiction il lin;,si
Without action on the part OF the lerisIssr,
neither one OF these tribunals powers esn
exercised aud where the Legislature does "
the duties and powers conferred on bosa n
bunals are limited. III either of these tfihopss
WAS provided for in the constitution a i: -
yIded for the superior court, then the rcrit5s.
might be different and the proposition unjphfh
maintained. The constitution prescribe Is
creation OF a superior court, but fixes It'd pcv,r
and duties exclusive OF any action on the M
the legislature. Its existence its Iife It's 5avsr
is created by the constitution, not BY the IA,
lature. The superior court, the ha3r
commission, justices OF the peace All IN
created By the constitution. with a.
difference: The first derives It's life s3r
from the constitution without the auxiusu u
aid.
But il is said that the commission does =
exercise judicial powers, and therefore sml
court, that its act is ministerial s'lu1dlk
power is the authority, not only % decid4 4
to make binding orders" 1.-THE inssrama1tE
ties used TO inform the tribunal, whether q ~
its own choice or fixed by law, are nuS6
auxiliary to that power, and operate on peIs1j
or things only through its action and b. yiyp<
OF it. Ibid, Sec. T.
Judicial acts are such as are performed NJ
the exercise of judicial powers" lIbidl "A
And "a ministerial act may be defined bhIs
one which person performs in given H1a 4
facts, IN prescribed manner, IN 0bedi<1@h
the mandate of legal authority without n5r1
to or the exercise of his own judgment upm Ia
propriety of the act being done. lIhidl
but ali acts based upon dixutu
judicial in its nature and affecting etS6
public or a private right, are jadiei1l ~
WOOD on Man. and Pro-, 145.
s'The writ Is not restricted 20 courts 70 n1zi /
nate" Note TO 3S Am. Dec, 59I
From the nature OF our government undH
written constitution. it deyolves upon tie ~
ciary to protect right when II is inyaded
exercise that power, a remedy must exist ~
the constitution itself not conferred upen m|
superior courts in express terms the remedy u Il
writ OF prohibition ART. ~. Sec d 30
code expressly eonfers il. section R2--hx
of mandate and prohibition may issue u
Section Coo court or ludgs thtIs4 g y
the county wherein the defendant, Il pu1is
officer or body, exercises his or itE funenN q
shall have exclusive iurisdittlon q y
proceeding" and "Our statutes hH q
rendered the difficult learning Of the od y u
OF prohibition mainly obsolete- saA( !
lngton, p. 1891. IN
Though the case in which our supreme oeg
so decided related more 70 the pfacElcs snn
is quoted to show the bent of the judicial mlA n
in this state while yet territory. q eAEV u
1867
.'s 1t is the proper remedy 80. a
when, having Jurisdiction, the lnferlo! uel.
assumes TO exercise an unauthoflzea Pow 81
Speaking of subordinate courts "and lEa
Judicial tribunals, Halves lurfsoictM g
Courts says: .The writ viii be awarded % - p
where such tribunal has jurisdiction, 8 H@
where ii has not jurisdiction. ~
see. l55. 156, etc, seq; Thompson vs. ll1A p
\. ", 81, o.; sweet VS.. Hubbard, d bsln' y Pe
Quimbo, appeal against the people, ~ y. ise
tOker VS.. supreme Court, y Cal., ~ IA
And to the general rule exception y I !,
made in some cases in which, though tne W ]
diction OF the inferior court was undounsn I
injustice OF the method OF proceeding ~ !. y
such as to induce the superior eouIl g
and prohibit il. some OF tle lIssi I
seem rather to fall under the na9 y
wrong and injustice done to the party % ~! ~ l
ing him, in the course OF proceeanE - ],
within the jurisdiction, some pensa as y, y Y
vantage to which the common or slsius !,
titled him. ~ "
Short on Pro-. $50, ASH.
lord Mansfield, having psrflcals. II
staneed the construction OF the aes q 2,slls hi n
ment as ground for prohibition. ~.
43S.l And SO a learned American lauSa
speaking of the writ being seldom 1870 ~.
said: "But there occasionally occurs y 80 Z r
markedly appropriate and It's opefslR. N
tary." Hence the infrequeney q ~. =
argues nothing against the validity o. y.% !
the process when appropriateu pr
People VS.. Chute, u How. Pra, ios $, ~ y
And sit is better TO stop acton = 49, a.
even though such action would pe sc NI. M = H
allow proceedings to be bad wnlcn 49,. "a r. 3
ject others TO inconyeniencs -
CATION M
Sweet VS.. Hubbard, supra. .shss<l NJ
Acts which give lnleflvi uasI By
Jurisdiction in certain eases are unae "a
general, when silent on the snbaec., = $500 IN
fecting the power of control ana ~ sisr n a.
which the superior court exercises ots = - -
ceedings of such tribunals" lbnuLeA u
see. 152 ~
Having enacted the law, it is the d Is .sss]
judiciary, as a ordinate branch Of .lS ~ a
ment, to give effect to it, but in gisinn s ssr
II we must construe the statute ana W 1,ss ~ Y.
law, the constitution, together. linus
see. LIS, Isf.l 49, ~
The legislature has not the powers q ~ b y
lament OF Cheat Britain. parlismeMa -, sus g
regard fundamental principles ana - ~
and arbitrary acts, "because there ~ ~ - l.
constitution from which its authors, tJtA
or on which it depends, and upon ~. 800 "a
courts can contest the validity o. Y, q
wills" [Cooley Const. Lin 9th I'd. W. = ~
Ed, 3D6. Af9 - n II