People v. Carrington

• Decision Date: 07 April 1888
• Court: Utah Supreme Court
• Parties: PEOPLE OF THE TERRITORY OF UTAH, EX RELATIONE ELI H. PIERCE, PETITIONER, v. J. B. CARRINGTON, RESPONDENT

17 P. 735

5 Utah 531

PEOPLE OF THE TERRITORY OF UTAH, EX RELATIONE ELI H. PIERCE, PETITIONER, v. J. B. CARRINGTON, RESPONDENT

Supreme Court of Utah

April 7, 1888

ORIGINAL application for a writ of prohibition. The opinion states the facts.

Demurrer overruled, and, the alternative writ made absolute.

Messrs Sheeks & Rawlins, for petitioner.

Mr Orlando W. Powers, for respondent.

BOREMAN, J. ZANE, C. J., and HENDERSON, J., concurred.

OPINION

BOREMAN, J.:

This is an application for a writ of prohibition. The applicant for the writ, Eli H. Pierce, was arrested upon a warrant issued by J. B. Carrington, a commissioner of this court, upon a charge of contempt of the commissioner's court, in writing and having published in the Salt Lake Herald certain articles concerning said commissioner's court. No copy of the articles has been furnished to us. Pierce was bound over to answer to said commissioner why he should not be punished as for contempt. Thereupon Pierce applied for the writ of prohibition to prevent said commissioner from proceeding in the matter. An alternative writ was issued. and to this the defendant, Carrington, has demurred, and also filed his answer. The principal ground of the demurrer is that the writ does not state facts sufficient to constitute a cause of action. The arguments of counsel were made upon the demurrer and, upon the whole case. The first objection to which our attention is called is that the applicant for this writ did not apply to the commissioner's court for relief before applying for the writ of prohibition. In support of this objection we are referred to High, Extr. Rem., secs. 765-773. The cases upon which Mr. High relies have not been furnished us, but from their titles, and from what appears in the text, it would seem that the cases are all civil ones, and in regard to matters other than contempt. Whether they are cases where the lower courts were acting within their general jurisdiction or without it, does not appear. It would seem probable that they were the former. We can well see why, in a common civil action, the party should be required to apply for relief first to the lower court. The different steps to be taken in the case are pointed out, and are consequently in the "ordinary course of law." But it is a wholly different matter where the lower court is acting without authority, and wholly outside of his jurisdiction, in a summary proceeding, and one of at least semi-criminal character, and where the penalty would be of the same nature as that imposed in criminal cases. The later and better practice in England and in this country is different from that urged by the defendant, or at least in cases of contempt, where the lower courts were acting wholly outside their general jurisdiction. In the late English case of Queen v. Lefroy, 4 Moak, Eng. R. 134, as soon as the party was cited to appear and answer for his contempt, a prohibition was immediately applied for, and thereafter was made absolute. A similar practice was followed in California, in People v. County Judge, 27 Cal. 151, and in Williams v. Dwinelle, 51 Cal. 442. Any other rule would seem to be unreasonable. The applicant for the writ is by the order of the commissioner required to answer and show cause why he should not be punished as for contempt. He denies the right of the commissioner to require him to answer and make such a showing, and he charges that the commissioner has threatened to proceed in the matter, and to punish him, and this charge is not denied in the answer. Simple justice would say that if the commissioner has no legal authority--no jurisdiction [5 Utah 533] --to summon the applicant to answer and show cause why he should not be punished for such alleged contempt, the applicant should not be denied the writ by reason of the fact that before asking for it, he had not applied to the commissioner to dismiss the proceedings.

It is said that the applicant has a complete remedy by way of appeal. An appeal could only be resorted to after judgment. It would not prevent the unjust proceeding prior thereto, the expense, vexation, and annoyance of trial and an appeal would subject the applicant to the necessity of taking all the preliminary steps therefor, giving undertaking, etc., or of going to jail if unable to give the appeal-bond: and he would be required to follow the case into the district court, and take steps there for defence against the proceeding. When he should reach the district court, he would find that he could not have the issues heard and determined there upon which he was tried and condemned by the commissioner. The only question there to be settled would be that the commissioner was acting without authority, and that the proceedings should be dismissed. Such would not be an adequate remedy for the vexations, expense, and probably damaging trial through which he had, against his will, been forced. It is said that the applicant has ample remedy by way of certiorari. but certiorari, like appeal, has no effect until after action has been had by the commissioner. A certiorari can only be issued when the inferior court "has exceeded" its jurisdiction. It looks to the past and not to the future. It then would not prevent the illegal proceedings that should follow. The writ of prohibition is preventive, and not remedial, in its nature, and therefore is the appropriate writ to arrest the unauthorized proceeding, prior to judgment as well as after it, always, however, looking to the future, and not to the past.

Our attention is called to the fact that habeas corpus would be available. But it could avail nothing until after the party has been restrained of his liberty. In the present case that would take place after judgment, and when the person had been committed to prison. It would be neither a speedy nor adequate remedy. Therefore, neither appeal, certiorari, nor habeas corpus would be "a plain, speedy, and adequate remedy" in this case. They would all leave the applicant without relief from vexations, annoyances, injury, and expense of the unauthorized proceedings of the commissioner. No citizen should be subjected to an illegal arrest, trial, or imprisonment. If the proceedings be illegal, and without the jurisdiction of the commissioner, the party should be relieved therefrom at the earliest possible moment. The purpose of the writ of prohibition is to arrest "the proceedings" when they are "without or in excess of the jurisdiction" of the tribunal assuming to exercise them. Laws Utah, 1884, p. 326, sec. 982. If the commissioner was acting simply "in excess" of his jurisdiction, an appeal, or writ of certiorari or habeas corpus, might be an adequate remedy, as upon the appeal the case would be tried de novo, and it or certiorari might be the appropriate and ordinary course of law; but where he is acting wholly "without" his jurisdiction, the question is...