Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1906-10-11

iit'i''i toN II iils1 ~ yesterday III
the case where the city of Augusta
pcttioncd for a writ of prohibition re
straining the County Commissioners
from taking jurisdiction in the Ed
wards Company tax matter The
prayer of the petitioners was denied.
A date of hearing has already been
assigned to Wednesday. October II,
and it will now be held on that day.
The fun text of the opinion follows: -
The city of Augusta Petitioner for
Writ Of Prohibition
versus
The County Commissioners of Kennt-
boS County.
Emery, j. The Writ Of Prohibition
is an extraordinary remedy which has
seldom been involved in this State and
more seldom granted. Its function is
TO prevent Il court Of peculiar limited
or inferior Jurisdiction taking judicial
coSnl;tnce of cases not within its iuriS-
dirton 3i'l. Com. H.. WASHEEI.\
' PHILLIPS Met. 296. PIP 29S. go
In inns stat" The Supreme judicial
court is vested With power to issue
the writ when shown to be necessary
IN I'll" furthcrauct of Justice but its
common law character ana scope have
hot been enlarged. 1T remains Il pre-
foSatlNt writ not 10 he sued out as Of
c"urS" but 10 be- granted only when in
TN" Judgment of the court is ncces-
Sary Tor the prevention of some sub
StantIal injury by an inferior court.
It is suggested in % Am. Eng. En.g. of
Law t23dD 1886 that in some of the
ht4 ~
abolished.
In considering whether the Writ
should j" issued the court will NOT con-
Sid'r mere errors or Irregularities in
the proceedings sought to be prohibit :
cd. 1t must appear ana clearly that
they are wholly outside of the inferior
courts Jurisdiction. This was the case
IN Hartman V. County Commissioners
- Ne. 81, tn" only reported case have
found in this State in which the Writ
was granted. Upon appeal from the
commissioners action I'm q road case
th' judgment of the commissioners
was WHOLLY reversed" and a different
Judgment rendered which the commits
SionerS Were required by law to carry
into effect as if made by them" claws
VI l''' III i'o1 Yet lIlf commissioners
proposed to carry into effect their own
judgment which had been "wholly re-
verScd." Clearly and without doubt
they had no authority to do 50.
Again. the writ should not be used
in thu place Of the ordinary processes
foi the review of the proceedings and
the correction Of the errors inferior or
special courts. Hence it should not
Issue when there Ia an adequate rem
edy by appeal. writ of error or writ of
ccrtiorari. In the Hartman case
supra CI3 Ne. $50 reasons We're given
why these remedies We're not applica-
bic nor adequate. Where some such
remedy is applicable the writ should
not be issued even if the inferior court
is without jurisdiction and a trial
therein would be- useless. troublesome
and expensive. Lindley V. Superior
Court, 1il Col. 80 GA =. 7C!). State V.
Dist Ct. % MINI. 2323.
| think the foregoing propositions
are sustained by the much greater
weight Of authorities as summarized in
% Am. Eng. Ency. of Law Title Pro-
hibition
The case in which the writ or prohi-
bition is now applied for is this: Nv
statute r. s. Oh. 8. Sec. IS, if asses
So-S Of taxes refuse to make an abate-
ment of taxes applied for. the applicant
may apply for an abatement ITO the
county commissioners at their next
meeting. I;y statute K. s, Oh. so
Sc. 5. the county commissioners Of
kenn"buc county are required to "hnid
annual sessions" in Augusta on the
third Tuesdays Of April, August and
December. In accordance with a very
general and well known practice they
have usually continued each session by
adjournment from time to time, meet
ing again at the times to which adj
journmrnt was made. The session he
gun AMI holden on the third Tuesday
of August last was later adjourned to
the 18th day of the September then
next. In the meantime, on the 23th of
the sam" August, four days after the
beginning Of the August session, the
assessors Of Augusta notified the Ed
wards Manufacturing Company Of
their decision. niaha The sdn,r day, not
to abate any part Of it, taxes under It's
prior application to them for ,bite-
ment. No question is made of the
regularity and sutticiency of the COM
pany's application to the assessors
Upon receiving this notice. the COM
pany on the 2Sth day of the same Au
gust filed in the ufiite Of thu county
commissioners an application Tor an
aba tcmont Of It's tax under r. s.. Oh.
O. Sec. IS. On the 18th day of Septem-
Der following, to which day their Au-
gust session had been adjourned.
counsel for the city appeared before
the commissioners solely to object, and
did object. 70 their taking any cog
niTunct of their petition on the sole
ground that it was preSentable ana
cognizable only at their next December