CHAPTER XII.

THE JURISDICTION OF THE SUPREME COURT TO ISSUE WRITS OF PROHIBITION, MANDAMUS AND CERTIORARI.

(a) THE WRIT OF PROHIBITION.

§ 488. Writ of prohibition defined.-A writ of prohibition is a common-law writ issuing out of a superior court, directed to a court of peculiar, limited or inferior jurisdiction inhibiting it from assuming jurisdiction of a matter beyond its legal

cognizance, or exceeding its jurisdiction in matters of which it has cognizance. The writ lies only to restrain the unlawful exercise of judicial functions, and acts of a mere ministerial, administrative or executive character are not within the purview of the remedy afforded by it. When the suit complained of is brought by a private person, he may be joined as a defendant in the writ, but when the suit or prosecution is by or on behalf of the government the writ can go to the court only. The direction of the writ to the parties to the suit is merely incidental to the prohibition laid upon the court.1

§ 489. The writ is preventive-Will not lie after the cause is ended. A writ of prohibition will never be issued unless it clearly appears that the inferior court is about to exceed its jurisdiction. It cannot be made to serve the purpose of a writ of error or certiorari to correct the mistakes of that court in deciding any question of law or fact within its jurisdiction. The writ cannot be used except to prevent the doing of something about to be done; it will never be issued to correct acts already completed. It commands the court to which it is directed not to do something which it is about to do, and will not issue after the cause is ended.2

§ 490. Jurisdiction of the supreme court of the United States to issue the writ of prohibition.-The jurisdiction of the courts of the United States is special and limited, and derived alone from the constitution and laws of the United States; and under the present judicial arrangement, the supreme court can issue the writ of prohibition to the district courts only, and tɔ them only in cases of admiralty and maritime jurisdiction."

V.

13 Bl. Com. 112; Smith v. Whitney, 116 U. S. 167-186 (29:601); Ex parte Brandlocht, 2 Hill, 367; Thompson v. Tracy, 60 N. Y. 31; Connecticut River Railroad Franklin County Com'rs, 127 Mass. 50; State v. Gray, 33 Wis. 93; Homes Ins. Co. v. Flint, 13 Minn. 244; Ex parte Williams, 4 Ark. 537, S. C. 38 Am. Dec. 46; Claytin v. Heidleberg, 9 Smedes & M. (Miss.) 623; Washburn V. Phillips, 2 Met. (Mass.) 296; Ex parte Easton, 95 U. S. 68-78 (24:

373); Ex parte Cooper, 143 U. S. 472-513 (36:232).

2 Smith v. Whitney, 116 U. S. 167-186 (29:601); Ex parte Gordon, 104 U. S. 515 (26:814); Ex parte Detroit River Ferry Co., 104 U. S. 519 (26:815); Ex parte Hager, 104 U. S. 520 (26:816); Ex parte Pennsylvania, 109 U. S. 174 (27:894); United States v. Hoffman, 4 Wall. 158 (18:354); Ex parte Easton, 95 U. S. 68 (24:373). 3 U. S. Rev. Stat. sec. 688, U. S. Comp. Stat. 1901, p. 565, 4 Fed.

Several applications have been made for writs of prohibition to circuit courts, but there is no instance in which the writ ever issued to a circuit court.*

§ 491. When the writ will be granted.-When it appears that the court whose action is sought to be prohibited has clearly no jurisdiction of the case originally, or of some collateral matter arising therein, a party who has objected to the jurisdiction at the outset and has no other remedy is entitled to a writ of prohibition as a matter of right, in those cases in which the law authorizes its issuance; but where there is another legal remedy by appeal or otherwise, or where the question of the jurisdiction of the court is doubtful, or depends upon facts which are not made matter of record, or where the application is made by a stranger, the granting or refusal of the writ is discretionary. Nor is the granting of the writ obligatory when the case has gone to sentence, and the want of jurisdiction does not appear upon the face of the proceedings."

§ 492. The want of jurisdiction must appear from the record. In an application for a writ of prohibition, whether the district court has exceeded its jurisdiction or not must be determined upon the facts stated in the record upon which the court is called to act, and by which alone it can regulate its judgment, and not upon facts dehors the record set up in the application for the writ."

§ 493. The writ of prohibition not of great importance in the federal judicial system.-Inasmuch as the federal judiciary act of March 3, 1891, gives a remedy by writ of error or appeal in all cases decided by the circuit and district courts of the United States, and that without regard to the sum or value in controversy, the writ of prohibition is no longer of any great importance in the federal judicial system. In every case when

Stat. Anno. 439; Ex parte Christy, 3 How. 292 (11:603); Ex parte Gordon, 1 Black, 503-506 (17: 134); Ex parte Graham, 10 Wall. 541-543 (19:981).

4 Ex parte Warmouth, 17 Wall. 64 (21:543); Re Baiz, 135 U. S. 404 (34:222); Smith v. Whitney, 116 U. S. 172 (29:602); Re Rice, 155 U. S. 396 (39:198).

5 Re Rice, 155 U. S. 396-403 (39:198); Smith v. Whitney, 116 U. S. 167 (29:601); Ex parte Cooper, 143 U. S. 472 (36:232); Re Huguley Mfg. Co., 184 U. S. 297302 (46:549).

Ex parte Easton, 95 U. S. 68 (24:373).

the jurisdiction of the district or circuit court is in issue, the case may go directly to the supreme court."

(b) THE WRIT OF MANDAMUS.

§ 494. The writ of mandamus defined.-By the common law. The writ of mandamus is a prerogative writ, containing a command in the king's name, and issuing from the court of king's bench, directed to persons, corporations, or inferior courts of judicature within the king's dominions, requiring them to do a certain specific act, as being the duty of their office, character or situation, agreeably to right and justice. This writ affords a proper remedy, in cases where the party has not any other means of compelling a specific performance. The object of the writ is not to supersede legal remedies, but only to supply the defect of them. The only proper ground of the writ is a defect of justice. It is, however, a prerogative writ, and not a writ of right, and it is the absence or want of a specific legal remedy, which gives the court jurisdiction. There must be a specific legal right, as well as the want of a specific legal remedy, in order to found an application for a mandamus. It is no objection, however, to the granting a mandamus to do a particular act, that an indictment will also lie for the omission to do the act. The power to issue the writ belongs exclusively to the court of king's bench, and is considered as one of the flowers of that court; but this power ought to be exercised with great caution, as a writ of error does not lie on this proceeding. A mandamus lies either to restore a person wrongfully ousted or to admit a person wrongfully refused." s

§ 495. Jurisdiction of supreme court to issue the writ of mandamus regulated by statute.-By the thirteenth section of the original judiciary act it was provided that the supreme court shall have power to issue "writs of mandamus in cases

7 26 U. S. Stat. at L. ch. 517, secs. 5, 6, 7, p. 826; 2 Bates, Fed. Eq. Proc. secs. 793, 796, 797, 798, 806; Re Huguley Mfg. Co., 184 U. S. 297 (46:594); Ex parte New York & P. R. S. Co., 155 U. S. 523 (39:246).

8 2 Selwyn's Nisi Prius (1831) 261-262; Bradley v. McCrabb, Dallam (Texas), 504; Kendall V. United States, 12 Pet. 524-653 (9: 1181); Ex parte Crane, 5 Pet. 190223 (8:92).

warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States," and in the revision the following words are added, namely: "Where a state, or an ambassador, or other public minister or consul or vice-consul is a party.

99 10

§ 496. Same Power of supreme court to issue writ in exercise of original jurisdiction limited by the constitution.-The jurisdiction of the supreme court, both original and appellate, is defined in the constitution, and the dividing line between the two kinds of jurisdiction is clearly and unmistakably fixed and established," and it is not within the competency of congress to vest in that court the power to issue the writ of mandamus as an original proceeding except in those classes of cases particularly specified in the constitutional provision as falling within its original jurisdiction; and, therefore, it was accordingly held that the thirteenth section of the original judiciary act was ineffectual to vest in the supreme court power and jurisdiction to issue a writ of mandamus to the secretary of state of the United States to compel him to deliver to certain persons, named as applicants for the writ, their commissions as justices of the peace in the District of Columbia, they having been appointed to such offices by the President.12

§ 497. Writ of mandamus issued by the supreme court chiefly in aid of its appellate jurisdiction.-Ever since the decision of the case 13 cited in the section next preceding, it has been a settled and fundamental rule of federal jurisprudence, that, except in the classes of cases over which the supreme court is by the constitution given original jurisdiction, that court can issue the writ of mandamus only in the exercise of or in aid of its appellate jurisdiction. The word "appellate" used in the constitution to define the jurisdiction of the supreme court was not employed in a restricted sense, but in the broadest sense, embracing appeals, writs of error, prohibition, certiorari and mandamus, as proper proceedings to be used for

91 U. S. Stat. at L. ch. 20, sec. 13, pp. 73-79.

10 U. S. Rev. Stat. sec. 688, 4 Fed. Stat. Anno. 439, U. S. Comp. Stat. 1901, p. 565.

11 U. S. Const. art. III. sec. 3, cl. 2.

12 Marbury v. Madison, 1 Cranch, 137-180 (2:60).

13 Marbury v. Madison, 1 Cranch, 137-180 (2:60).