The morning news. [volume] (Savannah, Ga.) 1887-1900, 1897-10-24

ed upon 70 say whether The stay Of the
invasion upon the rights OF the commits
sioners shall continue. Mr.. duBignon laid
stress upon the point that the hearing Of
the case upon its merits can only come
up AT the time named in the restraining
order, the next regular term Of the court.
Inc motion before the court, he held, is
In the nature of a demurrer to a re-
straining order. Mr.. duBisnon said that
ne was surprised that the counsel for the
otner side had demurred TO an averment
OF TACT, tnat is, that the city council was
proceeding TO remove the commissioners
from office. Mr.. duBgnon referred to the
position taken by Mr. Adams s to the
extraordinary nature of a writ of prohibi-
ton. II the position taken by Mr.. Adams
Is correct, he said. there will not be found
a single imaginary case where a writ of
prohibition will be available.
The office of the writ of prohibition, he
said. is not remedial. but preventive Re-
ducing Mr.. Adams argument to its legitl-
mate and logical conclusion, the writ of
prohibition is Of no use. A number of de-
cisions by the supreme courts of Georgia
and other states were quoted showing the
hlgh value placed upon the writ of prohl-
bition by these bodies. If there was ever
a case, he said, where a writ of prohibl-
uon Is Justifable, il is in this case, as
he would undertake TO show. He referred
TO an instance where a justice of the
peace undertook to set aside judgment
rendered by him, in effect to grant a
new trial writ of prohibition was
sought and the matter finally reached the
supreme court. The opinion of the court
approving of the writ of prohibition uudel
such circumstances and defining its or
flee to be to restrain subordinate courts
and other tribunals OF inferior jurisdiction
from exceeding their jurisdiction, was
quoted. This view of the writ he held
Ia in
ton.
A diversion was brought about here by
Mr.. duBlgnons bringing up authority,
Judge High, who had just been quoted
with approval by Mr. Adams to the effect
that where writ of prohibition had been
granted and a rule nisi issued to show
cause, the restraining order might be dis
solved in vacation, and the rule nisi would
still operate to prevent further procedure
on the part of the body towards which 1t
was directed until the matter at issue
could be brought up for a final hearing at
the regular term of the court. If this was
the view of counsel for the other side Mr..
duBignon said, he readily agreed with him,
and he would have no objection to the dis
solution of the restraining order imme-
diately, with the understanding that the
rule nisi operated as a supersedeas to pre-
vent further procedure on the part of
council
The effect of the adoption of this sug-
gestion would have been to bring the pro-
ceedings to a close at once, and a the
same time to secure a postponement of ac-
ton by council until after the hearing of
the case az the regular term of the court
in December, which would have suited the
counsel for the fire commission exactly.
Mr. duBignon handled the authority
quoted by Mr.. Adams so ingeniously that
he seemed to have trapped him into advo-
eating the very thing which counsel for
the fire commission desired. Judge Falli-
CANT frightened up percepdbly at the pros
pect of bringing TO a sudden conclusion
what promised to be a troublesome piece
of litigation with the decision of some very
fine points of law devolving upon himself
There was to be no such easy solution
of the matter however. Mr. Adams was
not prepared to make suth an easy sur
render, and viewed the opinion quoted
from the authority just mentioned in
different light.
Mr.. duBignon laid much stress upon the
fact that the writ of prohibition granted
by Judge Sweat had been made returna-
BILE at the regular term or the court, and
held that the case could not be tried as
to the ultimate rights of the parties inter-
ested until the term of court at which
the writ had been made returnable. He
took the position that the opposing coun-
sci had erred in moving to dissolve the
proper step would have been a motion to
review and revoke the restraining order
issued by Judge Sweat. This point was
argued at length, statutes and the dects-
ion of the supreme court being quoted as
support of the position taken. Numerous
distinguished authorities were quoted as
to the use Of the writ of prohibition Mr.
Adams having contended that the proper
course to have been taken by the COM
missioners should have been writ of GER
torarl by means of which they could have
taken the question before the superior
court for adjudication on its merits. Mr..
duBignon contended that the proper use
for the writ was where the court in
question had no jurisdiction. The conten-
ton of the petitioners in seeking the writ
was that council was proceeding to try
the commissioners when il had no jurls-
diction and, therefore, the writ of prohibit
tion was the proper procedure to be taken.
Mr.. duBignon took the position that
where no other court has express jurisdic-
ton an inferior tribunal has no right to
assume jurisdiction and that the writ of
prohibition was the proper resort to pre-
vent usurpation of such jurisdiction. Nu-
merous authorities were quoted 10 this eff
feet.
On the presumption that in case the re-
straining order should be dissolved by the
court the rule nisi would still operate to
prevent action by council, Mr.. duBlgnon
renewed his offer to Mr.. Adams to allow
the latter to take a motion to dissolve
the order. Mr.. Adams was willing to have
the order dissolved, but held that council
would then be at liberty to proceed in its
trial of the commissioners. There was
some interesting discussion of these points,
but without result.
Mr.. duBiguon resumed his argument in
the afternoon, his first position being that
corporations have only such powers as are
expressly conferred upon them. Authori-
| ties were quoted to the effect that when
ever doubt exists as to the powers of a
municipal corporation the doubt must al
ways be decided against the corporation.
The sections of the code quoted by Mr..
| Adams apparently comforting the authori-
| ty upon council to try and suspend or dis
miss any of its officers were combatted by
Mr.. duBgnon. Section 1870 of MacDonelI s
code, he held, is of no effect, being only a
| city ordinance and not applicable to Of
| ficers whose positions had been created by
| act of the legislature. The section of the
state code to the same effect quoted by
| Mr.. Adams was combatted on the ground
| that il could not be shown that it was
statute law, being quoted In the code as a
part of the code of Savannah, which was