Bellevue Water Co. v. Stockslager

Prohibition — When Wbit will Issue. — The writ of prohibition is. the counterpart of the writ of mandate and subject to the same conditions. It will not issue where there is a plain, speedy, and adequate remedy at law. Writ will not Issue Where Issue is Only Collateral. — The constitutionality of an act of the legislature will not be passed upon in an application for writ of prohibition in a case where it is. not directly in issue and is only collateral to the questions in issue as shown by the petition. (Syllabus by the court.)

Original proceeding for writ of prohibition, The wrrit of prohibition in this state is, we contend, not the writ as once understood at common law. Our statute defines it (sees. 4994, 4995). But it matters little whether it is a common-law writ or not, as the writ, where common-law princieiples pertain, will prohibit acts administrative and quasi judicial as well as those purely judicial. (19 Am. & Eng. Ency. of Law, 270, 271, 275, and notes.) What’ greater excess of jurisdiction can be exercised than holding court in a place not authorized by law. The jurisdiction of the district court is limited by the constitution and-statutes, and any act of the district court in excess of such jurisdiction can be prohibited. (State v. Young, 29 Minn. 474, 9 N. W. 738.) The statute-requires the holding of district courts at the county seats of the respective counties. (Sess. Laws 1890-91, p. 4.) The writ of prohibition as defined and authorized by the Kevised Statutes, sections 4994 and 4995, which are the same as sections 1102 and 1103 of the Code of Civil Procedure of California, is the common-law writ and extends only to inferior-tribunals acting judicially. And the legislature would have no power to enlarge the operation of the writ by extending it to tribunals or persons “whether exercising functions judicial or ministerial.” (Maurer v. Mitchell, 53 Cal. 291, 292; Spring Talley W. W. v. San Francisco, 52 Cal. 117; Gamron v. Fen-field, 57 Cal. 553; Spelling’s Extraordinary Belief, sec. 1718.) The nature of the act, and not the character of the officer, is the criterion. “The performance of a ministerial act by a judicial officer does not constitute the act itself a judicial proceeding.” (People v. Bush, 40 Cal. 344; Throop on Public Officers, sec. 539; Spelling’s Extraordinary Belief, sec. 1722.) But at the same time it must not be forgotten that where there is a remedy either by certiorari or by appeal, the writ of prohibition will not be issued. (Grant v. Superior Court, 106 Cal. 324, 39 Pac. 604; Spelling’s Extraordinary Belief, secs. 1727, 1728; Stoddard v. Superior Court (Cal.), 40 Pac. 491; High’s Extraordinary Bemedies, sec. 772; Smith v. Whitney, 116 H. S. 167; ■6 Sup. Ct. Bep. 570.) “The fact that a public agent exercises judgment and discretion in the performance of his duties does not make his actions or powers judicial in their character.” (People ex rel. Corwin v. Walter, 68 N. Y. 403; Throop on Public Officers, sec. 538; Myers v. Hamilton, 60 Cal. 289; Home Ins. Co. v. Flint, 13 Minn. 244 (Gilf. 228.) “The writ will lie in proper cases as to matters of a purely judicial nature; it will not go if the proceedings which it is sought to prevent •are only ministerial.” (High on Extraordinary Bemedies, sec. 769.) “The object of a writ of prohibition is to prevent a court of peculiar, limited or inferior jurisdiction from assuming jurisdiction of a matter beyond its legal cognizance. It ■can only be issued to restrain the exercise of judicial functions.” (Smith v. Whitney, 116 U. S. 167, 6 Sup. Ct. Bep. 570; Ex parte Detroit River Ferry Co., 104 TJ. S. 520, 6 Sup. Ct. Bep. 570; Orr v. State Board of Equalization, 3 Idaho, 190, 28 Pac. 416.) The petition alleges as the basis of the pending proceeding that defendant (Stockslager) “threatens to hold said terms.” By reference to the dates it will be seen that the several terms have been held. “The writ is a preventive, rather than a corrective, remedy.” (High on Extraordinary Bemedies, sec. 766.) “When, therefore, the proceedings which it is sought to ¿nohibit have already been disposed of by the court, and nothing; remains to be done either by the court or by the parties, prohibition will not lie, even though the case was thus disposed of after service upon the court of a rule to show cause why the writ should not issue.” •(United States v. Hoffman, 4 WalL 358; Brooks v. Warren, 5 Utah, 89,12 Pac. 659.) The rightful authority of a judge in the full exercise of his public or judicial functions cannot be questioned by a mere private suitom (Walcott v. Wells, 21 Nev. 47, 37 Am. St. Rep. 478, 24 Pae369.) The rule is, that the writ will issue from this court ta restrain inferior courts from acting without authority of law, but here we find express authority of law. (High’s Extraordinary Remedies, sec. 769.) No question of jurisdiction is involved, and no other matter furnishes sufficient grounds for thn writ. (Ah Goon v. Superior Court, 61 Cal. 55.) The matter-must go to jurisdiction. (High’s Extraordinary Remedies, sees. 785a, 790; Murphy v. Superior Court, 58 Cal. 520; Spect v. Superior Court, 59 Cal. 319.) Question must first be submitted to and determined by the lower court. (Chester v~ Colby, 52 Cal. 516; Southern Pac. B. B. Co. v. Superior Courts 59 Cal. 471; High’s Extraordinary Remedies, sec. 773; Cameron, v. Xenfield, 57 Cal. 550; Le Conte v. Town of Berkeley, 57 Cal. 269; Hobart v. Tillson, 66 Cal. 212, 5 Pac. 83.) Petition for a writ of prohibition to restrain the respondent from holding court in Hailey or in Shoshone, as the county seat of Logan county, or as the county seat of any county. Demurrer sustained, and writ denied. It was agreed, by counsel upon, both sides that these two cases should be considered and determined together. In this case H. E. Miller, as president of the Bellevue Water Company, a resident of Bellevue, praj^s for a writ of prohibition to restrain Judge Stockslager, the judge of district court for the fourth district, from holding court at Hailey or Shoshone, as the county seat of Logan county, and to prohibit him from holding court at any place as the county seat of Blaine county or Lincoln county, on the ground that no such, counties exist, and alleges: The legislature passed two acts, a& stated in petition for writ of mandate in Wright v. Kelly, ante, p. 624, 43 Pac. 565. That said acts are unconstitutionaL That said respondent is the qualified and acting j udge of fourth. judicial district, in -which is Logan county. That said petitioner has a suit pending in the said court at Bellevue, and that it is material and necessary that said suit should be tried and determined at Bellevue in Logan county, and if not so tried that petitioner will sustain great and irreparable damage, not being able to obtain a trial and determination of said cause. That petitioner demanded of said judge that he hold a term of court at Hailey as the county seat of Alturas county, and that he demanded that a term of court be held at Bellevue as the county seat of Logan county. That this was refused, and that respondent appointed a term of court to be held in Hailey as county seat of Blaine county, and in Shoshone as county seat of Lincoln. That such action would recognize the acts creating those counties as valid. That respondent replied to said demand, that he held, and should continue to hold, that the city of Bellevue was not the county seat of Logan or of any county, and that he should recognize the acts creating Blaine and Lincoln counties as valid. That the parties whose interests would be directly affected by this proceeding are the city of Bellevue and the pretended counties of Blaine and Lincoln. And he asks that the chairman of each of the boards of county commissioners shall be served with process, and the mayor of the city of Bellevue. Petitioner states, as a reason for the application to this court for said writ of prohibition, that this court is the only tribunal that has power and authority to compel said judge to hold a term of court in Bellevue, as the county seat of Logan county, aforesaid. Demurrer is interposed in this case, also, on the ground that the petitioner does not state facts sufficient to entitle him to said writ.