State ex rel. Townsend v. Ward

COLLINS, J.

Order upon the members of the common council of the city of Sauk Centre to show cause why a writ of prohibition should not issue and directing said council to desist and refrain from proceeding to try the relator — mayor of said city — upon a charge of misconduct in office. From the moving papers it appears that the charge, as preferred by a member of said council, contains two specifications substantially the same, namely, that said relator had willfully, arbitrarily, wrongfully, unlawfully and without any sufficient excuse therefor refused and neglected to sign his name, as mayor of the city, upon an order drawn by the city clerk upon the city treasurer for a sum of money appropriated by the council for the purchase of certain real property.

The city in question was organized under the provisions of Sp. Laws 1889, c. 4. No money can be drawn out of the city treasury except upon an order signed by the mayor and countersigned by the clerk. Authority is conferred upon the city council (subchapter 2, § 4, of the charter) to remove any elective officer “for cause,” after a trial and by a two-thirds vote of all of the aldermen required to be elected. The council can remove, having express authority to try the case and to determine whether cause for removal exists. No causes for removal are specifically or otherwise enumerated in the charter, so that it is incumbent upon the council itself, in the first instance, to determine what acts of commission or omission on the part of an official may subject him to trial, and whether just and reasonable grounds or causes exist for removal. It is insisted here that the charge and specifications upon which the council is about to proceed to a trial of the relator, conceding the matters therein alleged to be true, are wholly insufficient to justify either trial or removal, and that, as it is apparent upon the face of the charge and specifications that no sufficient cause exists for removal, the writ of prohibition should issue.

*63 The object of this writ is to prevent an inferior tribunal from usurping a jurisdiction with which it is not legally vested, or, to put it in another form, it issues only to restrain the acts of an inferior tribunal exercising some judicial power which it has no legal authority to exercise at all. A writ of prohibition is an ■extraordinary writ issuing out of a court of superior jurisdiction -and directed to an inferior court, or some other inferior tribunal •exercising some judicial or quasi judicial power,

“Commanding it to cease entertaining jurisdiction in a cause or proceeding over which it has no control, or where such inferior tribunal assumes to entertain a cause over which it has jurisdiction but goes beyond its legitimate powers and transgresses the bounds prescribed to it by law. * * It should be issued only in cases •of extreme necessity, and not for grievances which may be redressed by ordinary proceedings at law or in equity; and it is not demand-able as a matter of right, but of sound judicial discretion, to be ..granted or withheld according to the circumstances of each particular case. * * * It is the means, in other words, by which the •superior court exercises its supervisory power over the inferior •court, and keeps it within the limits of its rightful jurisdiction.” 19 Am. & Eng. Enc. 263, and citations; High, Extr. Rem. § 762, etc.

“A writ of prohibition is not to perform the office of a writ of •error. Its purpose is to prevent the inferior tribunal from assuming a jurisdiction not legally vested in it, or from exceeding its lawful authority. State v. St. Louis Court of Appeals, 99 Mo. 216 , 12 S. W. 661 ; Alderton v. Archer, 14 Q. B. Div. 1. Where the inferior tribunal has jurisdiction of the subject-matter and the defendant is duly served with process, or voluntarily appears, a writ of prohibition will not be granted. In re Cooper, 143 U. S. 472 , 12 Sup. Ct. 453.” State v. Evans, 88 Wis. 255 , 60 N. W. 433 ; Ex parte Greene, 29 Ala. 52 .

A writ of this character cannot be resorted to where the usual .aDd ordinary forms of remedy are sufficient to afford redress, as by motion, trial, appeal, certiorari, or otherwise. State v. Cory, 35 Minn. 178 , 28 N. W. 217 , and cases cited. As was said in State v. Young, 29 Minn. 474 , 9 N. W. 737 , at page 523, 29 Minn., and page ‘738, 9 N. W., three things are essential to justify the writ, the last one mentioned being that the exercise of the threatened judicial or quasi judicial power will result in injury for which there is no other ¿adequate remedy. See, also, People v. Nichols, 79 N. Y. 582 , a case *64 where, under the charter, the mayor of New York had proceeded to try another city officer “for cause,” with a view to his removal.

Under the charter provisions the respondents, as a common council, are empowered to remove the relator from his office “for cause,” and consequently for official misconduct, if it be of a character warranting the interference of one branch of the city government with another and co-ordinate branch, and if such alleged misconduct amounts to sufficient cause for a somewhat serious and drastic remedy. The council therefore had jurisdiction of the subject-matter of the proceedings, — the removal of the mayor from office for cause, — and it had also obtained jurisdiction over his person in the manner prescribed by law. The charge and specifications may be vague, indefinite, and insufficient, but this does not affect the jurisdiction of the tribunal in question.

If the specific acts charged are not such as, if proved, would sustain the action, no jurisdictional question is raised. The insufficiency of the charge and specifications may afford ground for an exception, for a defense, or for a reversal, should a trial result in conviction, but this insufficiency has no bearing upon the question of jurisdiction. Counsel confound the nature of the specifications with their sufficiency.

“The nature of the action determines the question of jurisdiction, and, when it sustains the jurisdiction, all questions of its sufficiency, under the allegations of the proofs, pass under the proper cognizance of the court, with power to determine them according to the law and the facts. * * * As to whether the special facts . alleged establish the existence of any one of these causes, that is a question going, not to the jurisdiction of the court, but to the merits of the cause, and the court has the same power to decide those merits, whether presented by exception, on the facts alleged, or after trial, on the facts proved. In neither case can the decision be arraigned under our supervisory power, when within the court’s jurisdiction.” State v. Judge, 45 La. Ann. 943 , 13 South, 185 .

See, also, McConiha v. Guthrie, 21 W. Va. 134 ; Haldeman v. Davis, 28 W. Va. 324 .

It has been claimed by counsel for relator that the writ should issue on the authority of State v. Wilcox, 24 Minn. 143 . An examination of that case will disclose that the county treasurer refused *65 to pay an order issued by the judge of probate for costs, fees and disbursements incurred in a proceeding to commit, and the commitment of, an insane person to a hospital. Thereupon the judge made an order requiring the treasurer to show cause why he should not be punished as for contempt in disobeying the order. The order for the payment of the costs, fees and disbursements was not, the court held, a judicial order, and in attempting to enforce its payment by proceedings as for contempt the judge acted beyond his jurisdiction. The judge of probate was absolutely without the power to enforce payment in any event, and hence it was a proper case for the issuance of a writ of prohibition. The distinction between the Wilcox case and the one before us is apparent.

Again, counsel cite at length from Appo v. People, 20 N. Y. 581 . There the facts were that Appo had been convicted in the court of oyer and terminer of a felony in April, 1859. The court then adjourned sine die, and at another term, held in October, an application was made to set aside the conviction and sentence and to grant a new trial. The district attorney, contending that the court had no power then to entertain the motion, sued out an alternative writ of prohibition from the supreme court. It was held on appeal that the court of oyer and terminer had no power, under the circumstances, to order a new trial upon the merits, and the writ was made absolute. It is easily seen that this case is not authority for counsel’s position here, for the writ was issued to restrain the inferior court from exercising jurisdiction on a subject or a matter over which it had no power under any circumstances. A writ of prohibition cannot be issued on the facts before us.

The order to show cause is discharged.