State v. Whitaker
| Decision Date | 18 April 1894 |
| Parties | STATE v. WHITAKER et al. |
| Court | North Carolina Supreme Court |
Petition by Rufus Whitaker and others for a writ of prohibition. Denied.
A writ of prohibition can issue only from the supreme court.
T. M Argo and J. C. L. Harris, for petitioners.
The defendants apply for a writ of prohibition to issue to Thomas Badger, mayor of the city of Raleigh, upon the ground that the city ordinance, for the violation of which they are being tried, is invalid, and because a trial by jury had been refused them.
The writ of prohibition existed at common law, and is also authorized by the constitutional provision (article 4, § 8) which gives the supreme court "power to issue any remedial writs necessary to give it a general supervision and control over the proceedings of the inferior courts." In this state this writ can issue only from the supreme court. Perry v. Shepherd, 78 N.C. 83.
The writ of prohibition is the converse of mandamus. It prohibits action, while mandamus compels action. It differs from an injunction, which enjoins a party to the action from doing the forbidden act, while prohibition is an extraordinary judicial writ, issuing to a court from another court having supervision and control of its proceedings, to prevent it from proceeding further in a matter pending before such lower court. It is an original remedial writ, and is the remedy afforded by the common law against the encroachment of jurisdiction by inferior courts, and to keep them within the limits prescribed by law. 19 Am. & Eng. Enc. Law, 263, 264; High, Extr. Rem. § 762. It is settled that this writ does not lie for grievances which may be redressed, in the ordinary course of judicial proceedings, by appeal, or by recordari or certiorari in lieu of an appeal. Nor is it a writ of right granted ex debito justitiae, like habeas corpus, but it is to be granted or withheld according to the circumstances of each particular case. Being a prerogative writ, it is to be used like all such, with great caution and forbearance, to prevent usurpation, and secure regularity, in judicial proceedings where none of the ordinary remedies provided by law will give the desired relief, and damage and wrong will ensue pending their application. High, Extr. Rem. §§ 765, 770.
In the present case the mayor's court has jurisdiction of the persons of the defendants, and of the subject-matter, which is the alleged violation of a town ordinance. If the ordinance in question is invalid, that matter can be determined on appeal to the superior court, and by a further appeal, if desired, thence to this court. This has been often done. There is no palpable usurpation of jurisdiction, or abuse of its authority, nor likelihood of injury to defendants, which calls for the extraordinary process of this court, by prohibition, to stop the action of the lower court. It is more orderly to proceed in the regular way,--to have an alleged error of this kind corrected on appeal. The writ might properly issue where the court below has no jurisdiction of the subjectmatter, as, for instance, if a justice of the peace should attempt to try a defendant for larceny, or decree foreclosure of a mortgage; but even in that case it would rest in the discretion of the supreme court whether the matter should be left to correction by appeal, or by treating such judgment as a nullity.
As to the denial of a jury trial by the mayor, it is pointed out by Smith, C.J., in State v. Powell, 97 N.C. 417, 1 S.E 482, that under the present constitution (article 1, § 13) the legislature is authorized to vest the trial of petty misdemeanors in inferior courts, without a jury, if the right of appeal is preserved. It was otherwise under the former constitution, under which State...
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