State ex rel. Chesley v. Wilcox
| Decision Date | 22 September 1877 |
| Citation | 24 Minn. 143 |
| Parties | State of Minnesota ex rel. B. H. Chesley v. John D. Wilcox |
| Court | Minnesota Supreme Court |
This was a writ of prohibition, commanding the respondent, judge of probate for Pine county, to show cause, upon a day named why he should not be absolutely restrained from enforcing the payment of a certain order upon the relator, treasurer of Kanabec county, by certain proceedings for contempt. The respondent, in his return thereto, prayed that the said writ might be dismissed, and that a writ of consultation might issue.
Palmer & Bell, for relator.
William Barrett, for respondent.
This is a common law writ, governed by common law principles, and is neither changed, limited or extended by the statute confirming its use in this state. Home Ins. Co. v. Flint, 13 Minn. 246. It is a well-established principle, however, of the common law, that, before the writ could issue in such a case as this, the want of jurisdiction should have been pleaded and refused in the court below. Fdmundson v. Walker Carth. 166; Cox v. St. Albans, 1 Mod. 81; Bouton v Hursler, 1 Barn. 71; Ex parte Meechen, 12 Ark. 70; Ex parte City of Little Rock, 26 Ark. 52; High on Ex. Leg. Rem 558, 559.
This writ is intended only to supply a remedy in extraordinary cases, and it will therefore not be issued until it appears that the aggrieved party has been denied relief in the inferior tribunal, (High on Ex. Leg. Rem. 551; State v. Judge, 4 Rob. La. 48; State v. Judge, 10 Rob. La. 169,) and that no complete remedy can be had in the ordinary course of judicial proceedings, (Ex parte Quackenbush, 2 Hill 369; State v. Judge, 11 Wis. 50; State v. Judge, 11 La. An. 696; State v. Judge, 21 La. An. 125; State v. Braun, 31 Wis. 600; Cooper v. Stocker, 9 Rich. 292; People v. Seward, 7 Wend. 518; Sasseen v. Hammond, 18 B. Mon. 672,) by appeal, (State v. Judge, 21 La. An. 123; People v. Court, 11 Mich. 393; McDonald v. Elfe, 1 N. & McC. 501; State v. Wakely, 2 N. & McC. 410; State v. Nathan, 4 Rich. 513; State v. Judge, 11 La. An. 696; Ex parte Peterson, 33 Ala. 74; People v. Marine Court, 36 Barb. 341; Symes v. Symes, Burr. 813,) or writ of error.
It is clear that the court in this instance had jurisdiction of insane persons in Pine county, (art. 6, § 7 of the Constitution; Gen. St. c. 49, § 2; § 3, sub. 7, 9; Gen. Laws 1866, c. 6, §§ 16, 17, 18; Gen. Laws 1867, c. 12; Gen. Laws 1868, c. 17; Gen. Laws 1872, c. 16,) not merely where such persons actually had been, but also where they were liable to be placed under guardianship. It is also clear that this court had such jurisdiction in Kanabec county, (Gen. St. c. 64, § 33; Gen. Laws 1871, c. 84; Gen Laws, 1872 c. 16; Gen. Laws 1873, c. 81; Case of Francis Lee, 1 Minn. 50, (70;) State v. Gut, 13 Minn. 341; Beebe v. Fridley, 16 Minn. 518,) which had been attached to Pine county for judicial purposes. Therefore a resort to this writ would not be justified, even if the court erred in the exercise of its jurisdiction. High on Ex. Leg. Rem. 554: Ex parte Peterson, 33 Ala. 74; Ex parte Greene, 29 Ala. 52. If, however, the judge of probate had jurisdiction over probate matters in Kanabec county, he had jurisdiction also over the person of Anderson, and over the treasurer of Kanabec county, and it therefore follows that he was authorized to allow and tax the costs of the proceedings against Anderson, to enter up the judgment against Kanabec county, and draw the order upon the county treasurer for its payment. The refusal of the treasurer to pay the order was, therefore, a contempt of the court, and rendered him liable to punishment. Gen. St. c. 49, § 7.
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 unnaturalized Swede, who had been in this state but three months, ten weeks of which he lived with an uncle in Kanabec county, and afterwards worked as a common laborer ten days in Pine county, became insane, and proceedings under the statute were instituted before the respondent, judge of probate of Pine county, which resulted in Anderson's commitment to the hospital for insane. The judge of probate thereupon entered a judgment or order for the costs, fees and disbursements in the matter, to be paid out of the county treasury, by the county treasurer of Kanabec county, upon the written order of the judge of probate, under the seal of his court, and afterwards issued a written order, under the seal of his court, directing the treasurer of Kanabec county to pay such fees and disbursements. The matter of paying them appears to have been laid before the county commissioners of that county, and they directed the treasurer not to pay them, and he refused to pay them. The judge of probate thereupon issued an order requiring the relator, the county treasurer of Kanabec county, to show cause why he should not be punished as for a contempt in disobeying said order.
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 no application to this case, for the judge of probate must be presumed to have considered and passed upon the question of jurisdiction in making the order upon which his subsequent proceeding is based.
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...
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