24 Minn. 143 | Minn. | 1877
Kanabec county is, and has been since 1858, an “established” county, and since 1871 has been attached for judicial purposes to Pine county, which is an “organized county. ” One Anderson, a single man and unnat
The proceeding here is an application for an absolute writ of prohibition restraining the respondent from proceeding further in the matter. It is based necessarily on the assumption that the judge of probate, in the attempt to enforce payment of the fees by the relator, is proceeding or about to proceed beyond his jurisdiction.
A preliminary objection is made by the respondent that the writ of prohibition will not lie because the question of jurisdiction in the proceedings contemplated by the judge of probate must first be raised before and passed upon by him, and because the writ will not lie when there is an adequate remedy by appeal or writ of error.
If it be a correct proposition that the want of jurisdiction must be pleaded, and the plea refused, in the subordinate tribunals before the writ will issue — and we doubt its correctness, except where it occurs in an ordinary action — it can have
The rule laid down by some text writers and decided cases, that the writ of prohibition is not a proper remedy when there is an adequate remedy by appeal or writ of error, is not one of universal application. It is undoubtedly correct as applied to a case where, in the course of an ordinary action, the court attempts to decide upon matters not within its jurisdiction, for all errors of that description are best corrected by the usual remedy of an appeal, writ of error, or certiorari. To extend the rule further than that would almost entirely abolish the writ. There are very few proceedings of a judicial character in which a party aggrieved by a usurpation of jurisdiction may not, either by some mode of review and correction, or by an action of trespass or otherwise, have an adequate remedy for the wrong. But we do not find any decision that in extraordinary proceedings the existence of such a remedy shall be ground for a refusal of the writ. The power of the court to issue the writ in such cases was distinctly affirmed in Leman v. Goulty, 3 Term, 3; and Appo v. The People, 20 N. Y. 531. The case before us is a proper one for the writ.
Two questions of jurisdiction are raised — one going to the authority of the judge of probate to proceed at all in the.matter of Anderson as an insane person, the other to his authority to enforce payment of these fees by proceedings for contempt.
The first of these questions is based upon the proposition that the arrest, examination and commitment to the hospital for insane of insane persons does not come within the jurisdiction conferred on probate courts by the constitution. Section 7, art. 6, provides; “A probate court shall have jurisdiction over the estates of deceased persons and persons under guardianship, but no other jurisdiction except as prescribed by this constitution. ” This clause came under consideration
The manner in which jurisdiction conferred by the constitution on any court or officer shall be exercised when not prescribed by the constitution itself, or the power to regulate it vested elsewhere, may be regulated by the legislature.’ For instance, under the clause of the constitution we have quoted, the legislature has authority to provide what persons may be appointed guardians, and to provide how, by warrant or otherwise, a person alleged to be insane may be brought before the probate court; how the question of insanity shall be examined; how the guardian shall be appointed and the insane person committed to his charge, and prescribe the duties and responsibilities, rights and powers of guardians. It may provide that there shall be a common guardian, to whose care and custody all persons found to be insane shall be committed, and regulate the proceedings for such commitment, leaving the probate court to determine whether, in each particular case, the particular person shall be put under such guardianship.
The acts under which the respondent proceeded assume to do no more than this. In effect, the superintendent of the hospital for insane is designated by those acts as a common guardian for insane persons. The insane are not placed in his
We have no doubt that where a county “established,” but not “organized,” and which is not authorized by law to have a probate court, is attached to an organized county for judicial purposes, the probate court of the latter county may exercise its jurisdiction over the former. The constitution provides for probate courts only in organized counties. The legislature may give “established” counties such officers as it pleases, or provide that the duties may be performed by the officers of the county to which they are attached, for the purpose of extending the jurisdiction of such officers over them.
There is some question whether, under the acts we have referred to, the judge of probate may not only audit the fees and expenses of the proceedings before him, but render a judgment conclusive of the liability of a particular county to pay them; and, for that purpose, may try and determine any question, such as that of domicil, upon which the question of liability might' depend, and do this without notice to the county claimed to be liable for such expenses.
Conceding, but without deciding, that he has such authority, the question arises, can he enforce such judgment by proceedings for contempt ? The statute does not expressly give him power to do so. Such, a mode of enforcing a mere