LEO MAURER and SIXTY-FIVE OTHERS v. WILLIAM MITCHELL, Tax Collector of the City and County of San Francisco, 53 Cal. 289

By the Court : At the common law the writ of prohibition was issued on the suggestion that the cause originally, or some collateral matter arising therein, did not belong to the inferior jurisdiction, but to the cognizance of some other Court. It was an original remedial writ, provided as a remedy for encroachment of jurisdiction. Its office was to restrain subordinate Courts and inferior judicial tribunals from exceeding their jurisdiction. (The Spring Valley Water Works v. The City and County of San Francisco, 52 Cal. 111.) By the fourth

section of the sixth

article of the Constitution of the State the Supreme Court has power to issue writs of prohibition. We are all of opinion that the writ mentioned in the Constitution is the writ of prohibition as known to the common law. Nor does the language of sec. 1102 of the Code of Civil Procedure require of us to hold that the office of the writ has been extended, or that it should now issue in cases in which it could not have been resorted to prior to the statute. The full text of' that

section is as follows: “ The writ of prohibition is the counterpart of the writ of mandamus. It arrests the proceedings of any tribunal, corporation, board, or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board, or person.” Giving the words of the last clause of the

section their natural construction in view of the law when the

section was adopted, there would be no difficulty in holding that the “ corporation, board, or person ” mentioned, was a corporation, board, or person clothed with limited judicial powers which had been exceeded. The word “ jurisdiction,” when used in connection with “ prohibition,” would be at once understood as being employed in the sense of the legal power or authority “ to hear and determine causes.”' It is said, however, that the first clause of the

section can only be given effect by extending prohibition so as to arrest every unauthorized act of an officer or person clothed with authority, as mandamus may be employed to compel the performance of any act enjoined by law, with the condition in each case that the party has no other plain, speedy and adequate remedy. But that prohibition as a remedy is not in every respect the exact converse of mandamus is made apparent by the words of the second clause of the same section, which declare that prohibition arrests proceedings which are without or in excess of the jurisdiction.

In prohibition.it must be shown to the Court that the inferior Court or person has exceeded the powers conferred by law, and the Court intervenes to prevent further proceedings without or in excess of such power. Mandamus may be resorted to whenever an officer or person refuses to perform a duty enjoined by law, although the act may have been an isolated one disconnected with any proceedings leading up to that which the recalcitrant official or individual refused to perform. In what sense, then, is the word “ counterpart ” employed in the first clause of the

section ? As it cannot be given the meaning of the exact reverse or’ opposite without doing away with the limitation contained in the second clause, whereby prohibition is confined to the cases in which the Court, corporation, officer, or person has already exceeded the powers conferred by law, it must have been used in the more general sense, that prohibition is the opposite, in that it arrests while mandamus commands action.

The word “ counterpart ” as employed in the statute is designed to illustrate the operation of the writ of prohibition when issued in a proper case, but it is not intended to enlarge or add to the class of. cases in which it may be resorted to. Writ denied and petition dismissed.