68 P. 660 | Kan. | 1902
The opinion of the court was delivered by
This is an attack on sections 2, 3 and 4 of chapter 232 of the Laws of 1901 (Gen. Stat. 1901, §§2494, 2495, 2496), commonly called the “Hurrel law.” It is the contention of defendants in error that the justice of the peace had no jurisdiction to entertain the criminal proceedings against them and that the warrant issued on. the complaint is void. The constutionality of the sections mentioned is vigorously assailed by counsel. We have not thought it necessary, however, in this case, to determine the constitutional questions so ably presented on behalf of the defendants in error, for the reason that they were raised below in an extraordinary proceeding when other adequate and familiar remedies might have been resorted to, amply sufficient to accomplish all the purposes for
“There shall be in each county organized for judicial purposes a district court, which shall be a court of record, and shall have general original jurisdiction of all matters, both civil and criminal (not otherwise provided by law), and j urisdiction in cases of appeal and error from all inferior courts and tribunals, and shall have a general supervision and control of all sueh inferior courts and tribunals, to prevent and correct errors and abuses.” (Gen. Stat. 1901, § 1923.)
The remedy invoked in the district court finds no sanction in oar practice except in the words we have italicized in the above section of the statute. For the correction of errors committed by the justice of the peace in the trial of the cause, there is complete relief afforded by appeal or proceedings in error. What abuses of judicial power may be corrected by the writ of prohibition, it is not now necessary to decide. It is sufficient to say that the record before us does not present a case which calls for interference in this extraordinary manner. In several states statutes like ours, above set out, which confer jurisdiction on superior courts to correct erroi's and abuses of inferior tribunals, conclude with the words, “where no other remedy is expressly provided bylaw.” This condition is implied, however, when omitted. Massachusetts has sueh a provision in its laws, and, in addition, writs of prohibition are expressly authorized to be granted by that name. In Washburn v. Phillips and others, 2 Metc. 296, 298, Chief Justice Shaw, delivering the opinion, said:
“Whilst, therefore, it thus appears that the power of the court is ample to issue writs of prohibition, upon proper and necessary occasions, yet, like the other prerogative writs with which it is associated, it is to be used with great caution and forbearance, foi| the furtherance of justice, and for securing order and'*840 regularity in all the tribunals, when there is no other regular and ordinary remedy.”
The statutes of the United States confer power on the supreme court to issue writs of prohibition to the district courts when proceeding as courts of admiralty. In In re Cooper, 143 U. S. 472-495, 12 Sup. Ct. 453, 458, 36 L. Ed. 232, it was said:
“Whether the granting or refusal of the writ is discretionary or demandable of right has been much debated. ,
“As remarked by Mr. Justice Gray in Smith v. Whitney, 116 U. S. 167, 173, 6 Sup. Ct. 570, 573, it may be said to be discretionary, ‘where there is another legal remedy, by appeal or otherwise, or where the question of the jurisdiction of the court whose action is sought to be prohibited is doubtful, or depends on facts which are not made matter of record, or where ft stranger, as he may in England, applies for the writ of prohibition. But where that court has clearly no jurisdiction of the suit or prosecution instituted before it, and the defendant therein has objected to its jurisdiction at the outset, and has no other remedy, he is entitled to a writ of prohibition as a matter of right; and a refusal to grant it, where all the proceedings appear of record, may be reviewed on error.’ ”
, In Mastin v. Sloan, 98 Mo. 252, 253, 11 S. W. 558, it was said:
“Any error that court may make in determining the proper limits of its jurisdiction in the premises can be effectively corrected by any of the usual modes of reviewing judgments. The writ of prohibition should issue only in circumstances where the ordinary remedies are inadequate to the ends of justice. Where, as here, an appeal or writ of error furnishes a complete and effective remedy* for any error of the court below, prejudicial to the rights of a party, this extraordinary remedy should be denied.”
See, also, State, ex rel. Reed, v. Jones, 2 Wash. 662, 27 Pac. 452, 26 Am. St. Rep. 897 ; Walcott v. Wells, 21 Nev.
Mandamus, being one of the extraordinary remedies, cannot be resorted to whenever there is another appropriate remedy. (The State, ex rel. Ayers, v. Stockwell, 7 Kan. 98 ; Elsbree, Relator, v. Bridgman, 8 id. 458.)
It cannot be said that lack of jurisdiction in the justice’s court is apparent. It has not been made clear to us, after two arguments of this cause and from the elaborate briefs filed. A justice of the peace is an officer created by the constitution, and it has been held that he has the same right to judge of the constitutionality of a law as any other court. (Mayberry and others v. Kelley, 1 Kan. 116.) The defendants in error can lose no rights by proceeding in a regular and ordinary manner to have such rights determined. The following language of the court in Asbell v. The State, 62 Kan. 209, 212, 61 Pac. 690, where the right to a writ of coram nobis was considered, is pertinent here :
“Butto give this remedy the scope claimed in behalf of the petitioner would be to substitute a somewhat obsolete writ for a simple and summary procedure specifically provided by statute. Our code provides how errors may be corrected in the courts in which they occur, and to the extent that provision is so made it is necessarily exclusive of the common-law writs and procedure. This writ, instead of superseding the statutory provisions, is only employed in aid of them, or where the statute fails to afford a remedy.”
The judgment of the district court will be reversed, with directions to enter judgment for the defendant below.