Johnston v. Hunter

• Citation: 40 S.E. 448,60 W.Va. 52
• Court: Supreme Court of West Virginia
• Decision Date: 16 November 1901
• Parties: JOHNSTON et al. v. HUNTER et al.

40 S.E. 448

60 W.Va. 52

JOHNSTON et al.

v.HUNTER et al.

Supreme Court of Appeals of West Virginia.

Nov. 16, 1901.

WRIT OF PROHIBITION — JURISDICTION OF COURT—JUSTICE OF THE PEACE—PROCESS RETURNABLE IN ANOTHER DISTRICT.

1. The writ of prohibition is purely jurisdictional, and will not lie to correct errors, or be allowed to usurp the functions of a writ of error or certiorari, or of the remedy by appeal.

2. The existence and legal constitution of a court is an inseparable part of its jurisdiction, and it has no power to hear and determine causes, except at times and places authorized by law.

3. Except when expressly authorized by law, a justice of the peace cannot hear and determine a cause in a district other than the one for which he was elected.

4. When a justice of the peace makes his process in an action returnable before him in a district other than the one for which he was elected and in which he resides, he thereby does an act in excess of his lawful powers, and the writ of prohibition lies to restrain him from proceeding to try such action without his district.

(Syllabus by the Court.)

Eiror to circuit court, Ohio county; H. C. Hervey, Judge.

Action by George Johnston and Laura A. Johnston against Annie M. Hunter and others. Decree for plaintiffs, and defendants bring error. Affirmed.

White & Allen and R. M. Addleman, for plaintiffs in error.

S. G. Smith, for defendants in error.

POFFENBARGER, J. This is a writ of error to a judgment of the circuit court of Ohio county, awarding a writ of prohibitionupon the petition of George Johnston and Laura A. Johnston against W. M. Rogers, a justice of the peace of said county, Henry Stoehr, a constable of said county, and Annie M. Hunter, plaintiff in a civil action brought before said justice for the sum of $145, ip which an attachment had been issued and levied upon a piano belonging to the defendants in error, restraining and prohibiting any further proceedings in said action. Said justice was elected for and resided in Center district, of said county, but made his process in the action returnable before him at his office in the district of Union, in said county. There was no service of process upon the defendants, and on the return day the justice issued a second summons, returnable before him in 30 days.

Our statute provides that the writ of prohibition shall He "in all cases of usurpation and abuse of power, when the inferior court has not jurisdiction of the subject-matter in controversy, or, having such jurisdiction, exceeds its legitimate powers." Code 1899, c. 110, § 1. Judge Brannon expresses the opinion in Eastliam v. Holt, 43 W. Va. 619, 27 S. E. 883, that this statute does not enlarge the common-law scope of the writ, and in the many cases of prohibition decided by this court the discussion of the propriety of the writ in the several cases of its application in general has proceeded upon the common-law doctrine respecting the functions of that writ. Mr. Works, in his treatise on Courts and their Jurisdiction, at page 628, says: "Notwithstanding such statutory provisions, the general nature of the writ remains the same. Its sole object is to prevent action by an inferior tribunal, or corporation, body, or person claiming to be such, where it has no jurisdiction to act And the act to be prevented must necessarily be judicial in its nature, and not ministerial, whatever may be the character of the tribunal assuming the right to perform it." At page 631 he says: "The writ is purely jurisdictional, and will not lie to correct errors, or be allowed to usurp the functions of a writ of error or certiorari, or of the remedy by appeal." These two propositions are laid down by Judge Snyder in McConiha v. Guthrie, 21 W. Va. 140, In the following language: "Prohibition, like all other extraordinary remedies, is to be resorted to only in cases where the usual and ordinary forms of remedy are insufficient and inadequate to afford redress; and it issues only in cases of extreme necessity, and before It can be granted it must appear that the party aggrieved has no available remedy in the inferior tribunals. * * * It is an original remedial writ and is the remedy afforded by the common law against encroachments of jurisdiction by inferior courts, and is used to keep such courts within the limits and bounds prescribed for them by law, and should, therefore, in all proper cases, he applied without hesitation. But It does not lie for error or grievances which may be redressed In the ordinary course of judicial proceedings by appeal or writ of error. It is a fundamental principle, and one which will be strictly enforced, that this writ is never allowed to usurp the functions of a writ of error or certiorari, and can never be employed as a process for the correction of errors of inferior tribunals."

The analysis of the language of the statute referred to shows that the use of this writ is intended only to restrain inferior courts from going beyond the jurisdiction vested in them by law. It lies "in all cases of usurpation of power." This is followed by a clause which clearly defines what is meant by usurpation of power. It is "when the inferior court has not jurisdiction of the subject-matter in controversy." It lies in all cases of abuse of power. Such power is abused when the inferior court "exceeds its legitimate powers." In either case it amounts to a lack of jurisdiction. In the one case, the court has no power or authority to act at all In the premises, or to hear and determine the cause, or to take cognizance of it in any way. In the other, the court has jurisdiction of the cause, power and authority to hear and determine, but in the exercise of its lawful powers it performs some act which it is forbidden by law to perform or has no lawful authority to do. In Works, Courts, at page 632, it is said: "A distinction is made, in this respect, in some of the cases, between the entire want of jurisdiction of the general subject-matter and a mere excess of jurisdiction; but the distinction does not seem to rest upon any solid foundation in reason." To determine, therefore, whether prohibition lies in this case, it is necessary to inquire whether the justice, in holding his court outside of his district although within his county, for the trial of the action brought before him, is proceeding without jurisdiction of the cause, or is abusing his power by doing an act in excess of his jurisdiction.

There are numerous definitions of jurisdiction, the substance of all of which is the power to hear and determine a cause. U. S. v. Arredondo, 6 Pet. 691, 8 L. Ed. 547; Freem. Judgm. § 118; Rhode Island v. Massachusetts, 12 Pet 718, 9 L. Ed. 1233; Works, Courts, 16; Quarl v. Abbett, 102 Ind. 239, 1 N. E. 476, 52 Am. Rep. 662. That definition probably covers the full meaning of the term, for it may be elaborated in various ways and still retain the same meaning. Power or authority to hear and determine a cause implies the existence of a tribunal to exercise such power, and such tribunal cannot exist except by authority of law. There must be a court or tribunal with judicial power. This feature has not been overlooked in the many definitions given. "Jurisdiction in courts is the power and authority to declare the law. The very word, in its origin, imports as much. It is derived from 'juris' and 'dico, '—'I speak by the law.' And that sentence ought to be inscribed in living lighton every tribunal of criminal power. It is the right of administering justice through the laws, by the means which the law has provided for that purpose. But here the mode and the manner of administering the justice of the country was not provided or prescribed by the law, and is directly prohibited by it There was, therefore, no jurisdiction." Mills v. Com., 13 Pa. 630. In that case the court of quarter sessions had tried an indictment at an adjourned session of the court, when the statute did not authorize the holding of an adjourned session for the trial of criminal cases, nor the trial of such cases at an adjourned session. The statute provided that such court might continue beyond the term for such time as might be necessary to complete a trial which had already commenced during the period limited by law for holding said court. It also provided for the holding of special sessions, but forbade the transaction at such special sessions of any business requiring' the intervention of a grand jury or a petit jury. Upon consideration of these provisions and the origin and procedure of such court, both in England and in Pennsylvania, the supreme court held that the court of quarter sessions had no power to try criminal cases at an adjourned term thereof. The following language is used in the opinion: "It is contended, also, that it is not a case of want of jurisdiction, because the court of quarter sessions has jurisdiction of the offense. True; but it must be a court of quarter sessions, acting and speaking according to law." That the existence of a court is implied in the very nature of jurisdiction and its exercise clearly appears in the definition of a court, which Blackstone says is "a place wherein justice is judicially administered." 3 Bl. Comm. 23. 4 Am. & Eng. Enc. Law, 447, says a court is "a body in the government organized for the public administration of justice at the time and place prescribed by law."

Courts or tribunals in the nature of courts are the only agencies of the law by which a cause can be heard and determined. They are the only depositaries of judicial power. Without them it lies dormant and inactive in the sovereignty of the state. Its active and potent existence is inseparable from that of a court It is not only necessary to the existence of judicial power that can be exercised that it be vested in a court or other tribunal, but there can be no court vested with such power unless and until all the requirements of law necessary to constitute such court are complied with. The...