The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1893-09-14

whole county was likely to be imme-
diately established by the result of q
number of precinct elections held at
the same or at different times as it
W ould be to allow the voters of the
| local option precincts to vote in an
| election which is really held to deter
mine the status of another territory
although nominally including the
local option precincts. If the rule AS
insisted on by the defendants is the
corr ect one, then under the amended
constitution and laws providing for
carrying out any part of the territory
of county and holding local option
election therein, the petitioners for the
election being generally composed OF.
those who favor the law, when seek
ing the adoption of the law over q
space of country in which the majority
of the residents were opposed to the
law, would be permitted to run off
the limits within which the election
was to be held so as to include a GER
tain other territory in which the local
option law was already in force and
as to which there was nothing to be
determined by the election, IN order
to gain the assistance of those resid-
ing in local option territory to put
the law in force over another space of
country in which the majority Of the
people did not want the law. 1t re-
quires no argument to prove that such
use of the law would do violence to
it's spirit and was never intended by
those who made the law l am salts
fed that the election in question if
held
WILL BE ENTIRELY VOID.
FOURTH will now consider whether
q remedy can be granted in this case.
The petition is for writ to restrain
certain electian officers from holding
an election and to restrain court
from further action in declaring and
publishing the result of the election,
and the plaintiffs call the writ which
they ask for to effect this restraint an
injunction; and such it might he if is
sued and applied to the election off
GERS alone or to any board of canvass
ers other than court. But, as the
county commissioners with the county
Judge form court over which the
constitution gives the district courts
general supervisory control. with such
exceptions and under such regulations
as may be prescribed by law, and
gives the said courts and the judges
thereof the power to issue "all writs
necessary to enforce their jurisdic-
tion," the remedy provided by law as
] a means of exercising such superv sorry
| jurisdiction must be employed If any
remedy can be used. Mr.. High, in his
standard work on Extraordinary Le-
gal Remedies, in noting the distinc-
ton between the writs of injunction
and writs OF prohibition says: "Both
have one common object, the restrain
ing of legal proceedings, and each is
resorted to when all other remedies
for attaining the desired result are un-
awaiting. This vital difference Is, how
ever, to be observed between them,
that an injunction against proceedings
at law is directed only t. the parties
litigant, without in any manner inter
ferring with the court, while prohi-
bition is directed to the court itself,
commanding it to cease from the ex-
erci 70 of a Jurisdiction to which it mas
no legal claim.n Sec. 1853. But il
the plaintiffs have shown case by
their petition which will ertitle them
to the special restraining relief which
they have specially prayed for, the
error as to the name which such a
writ as they ask for would necessarily
bear will not, L apprehend, deprive
them of the remedy, even
if such relief might not be
granted under their prayer for all
other general and special relief to
which they may appear entitled
under the law and facts OF the case
presented. 1 will, therefore, consider
the question as to whether plaintiff
are entitled to writ of prohibition
This question raises at once an in
quiry into the nature and extent OF
the jurisdiction of district court OF
this state and of judge thereof to is
sue writ of prohi nition. Mr. High
says of the nature of this writ: SIN
other words, it is substantially a pro-
ceeding between two courts.-a supe'
rior and an inferior-and is the means
by which the superior tribunal exer'
cises it's superintendence over the in
ferior and keeps it within the limits Of
it's rightful jurisdiction" High or
Extraordinary Legal Remedies, sec
ton 1858. Has district judge or dis
trict court Of this state a superintend
, ing jurisdiction over county CON
, missioners court? In article 5, section
, 10 of the constitution of this state, a;
amended in 1891, in defining the juris
dictiop of the district courts Of TIL:
state, it is provided as follows: "Fhf
district court shall have appellate
, jurisdiction and general supervisory
I control over the county commissioners
court, with such exceptions and under
such regulations as may be prescribed
, by law" 1t is also provided in saiG
! section as follows: "And said courts
! and the judges thereof shall have
, power to issue writs of habeas corpus
-. mandamus, injunction and certiorari
D and all writs necessary to enforce
! their jurisdiction 1t would seem
therefore, to be intended by the con
= stitution to confer on district courts s
Q general supervisory jurisdiction owe
t county commissioners court, and tina
@ the authority to issue al
= writs necessary to enforce
o their jurisdiction would il
! clude the power to issue writ Of pro
i hibition. 1t is a writ we'll known t,
q the common law, and the common Law
t furnishes the rule of action il thi
or tho n aonaa nf aOnatitJ + inn O