97 Cal. 440 | Cal. | 1893
This is an application for a writ of prohibition, to prevent respondents from levying a tax for municipal purposes upon property situated within the corporate limits of petitioner. A general demurrer to the petition was sustained by the trial court, and the legal sufficiency of the petition is the only matter before us.
After alleging the corporate existence of the city of San Diego, that the territory forming the city of Coro
The foregoing facts form no basis for the issuance of a writ of prohibition. Prohibition is essentially jurisdictional, and therefore judicial; mandamus is* purely ministerial; and when the Code of Civil Procedure declares that the writ of prohibition is the counterpart of the writ of mandate, the declaration cannot be true in its broadest sense, and to that extent it is misleading. These two writs are the counterpart of each other, to the extent that one is prohibitory and the other mandatory; one acts upon the person, the other acts upon the tribunal; but beyond that they have nothing in common. (Maurer v. Mitchell, 53 Cal. 289.)
It is recognized as a universal rule that the writ of mandate will issue to compel the levy of a tax, and it will issue for the reason that the act of making the levy is purely ministerial. If mandamus will issue to compel a levy, because the act is ministerial, it must be conceded that prohibition will not run to restrain the levy, for it can only be invoked to restrain threatened acts which are judicial in their character. It was held in Maurer v. Mitchell, 53 Cal. 289, that the writ of prohibition to which reference is made in the constitution and
The levy of the tax is not a judicial act, and for the foregoing reasons the judgment is affirmed.
Harrison, J., and Paterson, J., concurred.