The herald., 1898-02-05

ality OF statute creating court cannot
be determined upon an application for a
writ of mandate, when the existence OF
the court is involved, it could not be de-
termined, under like circumstances,
upon an application for writ of prohi-
bition The people are equally inter-
ested In the question here, and as they
are not made a.party there is no means
by which they could protect their In
terests. The existence Of the police
court here is denied upon the theory that
the statute creating it is unconstitu-
tional, and the cases above cited are pre-
csely in point and must be considered as
decisive of this case.
1t is also contended that the court has
no existence because the city of Los An
geles has outgrown the class of cities for
which the court was created, and in
| which only, as II is contended. 1T can
have legal existence. Conceding that
this point is also before the court, 1t
must still be held that the above cases
are conclusive authority to the effect
that the existence of the court, even
when disputed upon point other than
the unconstitutionality of the law.
cannot be questioned in this manner
The reason assigned in those cases was
that the people were interested in the
existence of the court, and not specific
ally in the abstract question of the con-
stitutionality of the law.
But even if these cases were not con-
| trolling. it Is manifest on other grounds
! that the question of the existence of the
court cannot be inquired into, or, more
correctly speaking, is not raised in this
! case.
| In the language of the code, the
writ is provided in order to ARREST the
proceedings" which are without or in
excess of the jurisdiction of such tribu-
nal, corporation, board or person." 1t
is plain from these expressions that
the person whose proceedings are
to be arrested must be a person
having some official functions, some
jurisdiction" and the proceedings in
which he is about to engage must be Of
fetal proceedings, something he is about
to do under color of an office. The ap-
plication for the writ. therefore, as
sumes, necessarily, as a basis for the
relief sought, that the office, in the exer
else of which, or in the pretended exer-
else of which, the person Is about to act,
has legal existence. Hence it follows
that If the foundation for the applica-
tion be that the person who is sought to
be restrained is pretending to exercise
some office which has not real exist
ence, the application defeats itself. III
there is no court there can be no pro-
ceedings to arrest, if there is no office
there can be no official action to pro-
hibit, and if there is no jurisdiction there
cannot be an excess of jurisdiction. FL
a person merely claims that there is an
office, and that the acts he is about to do
are to be done as part of the duties of
the office, and it turns out that there is
no such office, that the pretended office
is mere fiction, either in fact or in law, |
then the person must be held to be acting |
in his private capacity, and not as an Of |
ficer, and for acts so threatened, injunc-
tion, and not prohibition, is the appro-
pirate preventive remedy. Mandate
will not be against a private citizen.
State V. Powers, IA Ga. 3SS.
Another reason why the writ must be
refused in the present case arises out of
the same proposition. The writ can
issue only where there is not plain,
speedy and adequate remedy in the Or
dinary course of law" II there is no
legal court in existence, then the So
called proceedings have no legal exist
ence, they are void in the extreme
sense, any detention Of the petitioner Is
a false Imprisonment the writing pur-
porting to be a judgment would be mere
waste paper, and the petitioner would
have an ample and speedy remedy by
action for battery or false imprisonment
in case any one should seek to detainl
him during the trial, or to mprson him
upon any Judgment claimed to have
been rendered by such unlawful, unreal
and pretended court, or he would have
the right to resort to the writ of habeas
corpus.
Where the allegations in an application
for prohibition, II true show that the
which It is sought to pro-
hibit are absolutely void, they furnish an
argument against the is
suance of the witt. Barnes VI. dottschalk,
Mo. App. 222.
1t follows from these considerations
that the application for the writ must
be refused. The question Of the con-
Of the law purporting to
create the police court Of the city of Los
Angeles has been ably and elaborately
argued by counsel, but it cannot be con-
sidered in this case. 1t is we'll known
rule that the courts will never decide the
question OF the oonstitutionality Of
statute unless a decision of that very
point is absolutely necessary to the de-
cision of the case. Cooley Const. Linn,
5th Ed. 1856.
The order will be that the petition be
dismissed with costs to the defendant
LUCIEN SHAW, Judge;
WALTER VAN DYKE,
w. E. CANNON.
w. II. CLARK.
NJ. T. ALLEN.