The Wichita daily eagle., 1895-12-06
SET ASIDE THE WRIE.
Judge Reed Renders a Decision In the
manda mus Case.

manda mus Case.
Judge Reed rendered his decision in
the Schnitzler mandamus case yester-
| day as follows:
THE essential facts in THE case as
recited in the alternative writ are tha I
| William SchnJtzler and others were on
trial before the police judge; that one
of the defendants, s. A. Robinson. had
exercised the right of peremtory chaa-
ienge ITO four jurors; that S. NJ. Tucker
police judge, refused to permit the de-
fendant, William Schnitzler, TO further
exercise the right of peremtorily chal-
longing any juror; that the defendants
were being tried together. The de-
fendants claim they were each entitled
TO four peremptory challenges.
Much OF the Interpretation by the
court of the law relating 10 the right
or mandamus is confusing. The consti
tuition of this tate recognizes the writ
OF mandamus, but the scope of its pow
er is defined by the statute. Section
6SS of Procedure Civil, reads as follows.
A writ of mandamus may be issued by
the supreme court, the district court or
any justice or judge thereof, during
term or at chambers, 10 any inferior
tribunal, corporation, board or person
10 compel the performance of any act
which the law specially enjoins as a
duty resulting from tbs Office, trust or
station"
But though il may require an IN
ferior tribunal to proceed TO the dis
charge of any Of its functions, it can
not control judicial discretion. Sec
fion 6S9 reads: This writ may not be
issued m any case where there is a
plain and adequate remedy In the ordi-
nary course of law Under this sec
tion the supreme court of the state
have made a multitude of decisions,
beginning with 1st Kansas, and proceed
ing ais far at least as the 37th. Kansas,
covering almost every conceiva bl g
state of facts. There is one PROPOSE
ton relating to the writ of mandamus
upon which the law in all the states
seems TO be al one. and that is that it
cannot be issued where there is a plain
and adequate remedy in the ordinary
course Of law
The question arises, does the law
especially enjoin as a duty that the
Judge should allow so many challenges
The Code of Criminal Procedure speaks
about the right of a party to have so
many challenges; but does the law spec
lally enjoin it as a duty? 1 shall as
sumo for the purposes of this decision
that the law does specially enioin it
as duty, although it must be evidence
there Is nothing in the statute saying
that the court shall do so and so. 1
shall also assume for he purposes of
this decisjon-although some contro-
versy could be had concerning that
that the party was entitled to eight
peremptory challenges. 1 do not say
as proposition of law that the party
M hot
tiOn is not before me-
Courts have decided from time i'm
memorial that an appeal in error is a
plain and adequate remedy in the or
dinary course of law, unless in the ma
ture or things during the pendency OF
the appeal the right will have vanished
when the appeal is reached. Many au-
thonities have been cited by counsel.
1T was argued by counsel for the
relator that if the police Judge could
refuse TO grant the proper challenges
to defendant, he could also refuse to
grant jury. Assuming for the pur-
poses of this decision that to be true.
would ii necessarily follow that writ
Of mandamus should issue? 1t must
be apparent that If a writ of mandamus
can be issued in This case to have the
police judge grant a certain number
unused, whore the right is clear and ap-
parent, to do any other thing during
the trial. l am ofthe opinion that one
court cannot dictate ito another court
during its trial by writ of mandamus
how ii should rule on any question of
law That is TO say, that cannot be
done where there is a plain and ade-
quate remedy in the ordinary course Of
the law. Now. was there in this case
a plain and adequate remedy in THE or
Ginary course of the law? The party
has right to appeal. This is an ad-
equate remedy 1t may put the party
to Inconvenience and expense, but 1t
is an adequate remedy.
In conclusion / reiterate what I
said few moments ago: If this man.
damuS can lie against the defendant,
it can lie against him on any PROPOSE
tion Of law where he fails 30 do his du-
fy and that, ii seems 10 me, would be
against public policy. 1t certainly
cannot be the law to have one court
dictate to another how to rule during
the tendency of a trial.
The demurrer to the writ of man.
damus VIII be sustained