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(101 Wash. 81, 172 Pac. 257.)
sions had heard the application made by counsel on the part of the journeymen millers; but they also admitted that the counsel who opposed it had insisted that by the construction which had been put upon the Act of Elizabeth the discretion of the magistrates in the assessment of wages was confined to laborers and servants in husbandry, and that the sessions had, on that ground, rejected the application. Upon which Lord Ellenborough, Ch. J., observed that it was evident that the magistrates had never exercised their discretion at all upon the question whether the application was fit to be granted or not, but appeared to have considered that they had no jurisdiction to hear it; therefore, they could not be said to have already heard the application.
"We do not, however, by granting this mandamus, at all interfere with the exercise of that discretion which the legislature meant to confide to the justices of the peace in sessions; we only say that they have a discretion to exercise; and therefore they must hear the application; but, having heard it, it rests entirely with them to act or not upon it as they think fit."
It is clearly demonstrable that the law is settled by the great weight of authority that a court will supervise a lower court to the extent that it will compel it to take jurisdiction where it has erroneously denied its jurisdiction.
Coming now to our own decisions, in State ex rel. Martin v. Superior Ct. 97 Wash. 358, L.R.A.1917F, 905, 166 Pac. 630, we endeavored to show that in most of the cases where a writ had been denied it was because of the holding that appeal was an adequate remedy. And we think in all of them the jurisdic-, tion of the court over the subjectmatter was not questioned. It may be said that the genesis of all the subsequent confusion and conflict, or apparent conflict, in our own decisions is in the case of State ex rel. Townsend Gas & E. L. Co. v. 4 A.L.R.-37.
Superior Ct. 20 Wash. 502, 55 Pac. 933. We have had resort to the original briefs, and can say, in addition to what we said of it in the Martin Case, that the question put by counsel to the court was not whether a court would compel an inferior court to take jurisdiction of a case where jurisdiction had been disclaimed, but whether the court would compel the satisfaction of a judgment through the process of a contempt proceeding pending an appeal upon the merits. The court was exercising an acknowledged jurisdiction; it had passed on the merits. Its judgment, if ill founded, rested in error, and the writ was properly denied. There is certainly nothing in the decision, when read with the record in mind, that makes it an authority against our holding. Upon the authority of that case, this court refused in two subsequent cases to compel the superior court to take jurisdiction. State ex rel. Barbo v. Hadley, 20 Wash. 520, 56 Pac. 29; State ex rel. McIntyre v. Superior Ct. 21 Wash. 108, 57 Pac. 352.
Next in order is State ex rel. Romano v. Yakey, 43 Wash. 15, 85 Pac. 990, 9 Ann. Cas. 1071. Application was made to a justice of the peace for the issuance of a criminal warrant. The justice denied the warrant upon the false assumption that he had no power to issue the warrant, maintaining under the statutes that his act would be an interference with the duties of the prosecuting attorney. Although the writ was denied because directed to a judge by name, and not to the court, this court said:
"Section 6695, Bal. Code (P. C. § 3114), permits any person to make complaint that a criminal offense has been committed, and if the magistrate to whom the complaint is made wrongfully refuses to act in the matter, we think the party applying for the warrant has a sufficient interest in the performance of the public duty to compel action by mandamus.
"Section 6695, supra, under
which the application for the warrant in this case was made, provides that complaint may be made to a justice of the peace or judge of the superior court. Had this application been made to the superior court of King county, we would find no obstacle in the way of running a writ against that court."
The next case, and one which may be cited as an authority against us, is that of State ex rel. Piper v. Superior Ct. 45 Wash. 196, 87 Pac. 1120. There the judge of the superior court refused to proceed with the trial of a case. A writ of mandamus was refused. But the case does not rest upon, nor does it do violence to, the broad principles which we are asserting. The judge refused to proceed because the service had been made by publication, when the law made no provision for such manner of service in that kind of a case. The court acted judicially. It adjudged a fact and construed a law. It determined from the record that the statutes providing for the service of the process of the court had not been complied with. This clearly was a matter resting in error, and was reviewable by appeal.
In the case of State ex rel. Murphy v. Superior Ct. 73 Wash. 507, 131 Pac. 1136, the Piper Case was relied upon as authority. It was distinguished. This case, in our opinion, does not bear directly, one way or the other, upon the case we have at bar; for the mandamus was sought to compel the court to proceed with the trial of the case, or to enter a judgment of dismissal. The court had, to a certain extent, exercised its jurisdiction.
It is agreed by all text-writers, and has been affirmed by this court, that a writ of prohibition is the counterpart of the writ of mandate. The one is directed to compel action; the other to prohibit it.
time fixed by our statutes for the contest of a will. In other words, the court had no jurisdiction to hear and determine. Proceeding upon the theory that the question raised by the record rested in the definition of that term as a thing absolute, and not as resting in the determination of some fact, or whether the court had obtained jurisdiction of the person through a proper compliance with the statutes providing for the manner of bringing parties into court, or acquiring jurisdiction of a subject-matter admittedly within the jurisdiction of the court, we said: "It is contended that there is a plain, speedy, and adequate remedy by appeal, and for that reason the writ in any event should not issue. But the law appears to be that, where the court is proceeding with a case without first having acquired jurisdiction, it presents a proper case for the invocation of the writ of prohibition. White v. Superior Ct. 126 Cal. 245, 58 Pac. 450; State ex rel. Alladio v. Superior Ct. 17 Wash. 54, 48 Pac. 733; State ex rel. Mackintosh v. Superior Ct. 45 Wash. 248, 88 Pac. 207. In the case last cited, speaking of the proper function of the writ, it is said: "The function of a writ of prohibition is to arrest proceedings which are without, or in excess of, jurisdiction, and not to review errors in matters of procedure where jurisdiction exists.""
In State ex rel. Wood v. Superior Ct. 76 Wash. 27, 135 Pac. 494, the superior court was proceeding to hear and determine a will contest, which had been begun after the
But if, after all, it be said with any assurance that we have held to the contrary of our present position, it can be said with the same assurance that we have as often held the other way. We have not always differentiated between inherent power to hear and power to proceed. This has resulted in a confusion in our decisions. With this distinction preserved, the law is clear. Where there is a lack of inherent jurisdiction in the court itself, a writ of prohibition will lie to restrain it from further proceedings; or, where the court has erroneously decided that such inherent jurisdiction is lacking, man
(101 Wash. 81, 172 Pac. 257.)
damus will lie to compel it to entertain the cause, and to hear and determine. Where, however, the question is whether the court, acting within the scope of its admitted jurisdiction, has acquired jurisdiction over the parties or the particular subject-matter, the writ will not issue. In such a case the court is exercising its judicial function in passing on the question, not whether it has inherent jurisdiction, but whether it has acquired jurisdiction or a right to proceed within the limit of an admitted jurisdiction. If, in the exercise of its discretion or judgment, it commits error, the proper remedy is by appeal, and not by writ of prohibition or mandamus. Viewed in this light, the decision in the Piper Case is entirely consistent; for there the court did not hold that it lacked jurisdiction inherently, but simply that its jurisdiction had not been properly invoked.
That the court has jurisdiction of the subject-matter of this case, and ought to hear the petition of the relator and enter a judgment upon the issues tendered by the answer of the guardian, we have no doubt. Counsel admits that prior to the enactment of the Probate Code of 1917 (Laws 1917, p. 642) the court, acting in probate, had jurisdiction to inquire into the sanity of a person who had been adjudged to be insane. Rem. Code, § 1671, which was repealed by the Act of 1917, read as follows: "Whenever the court shall receive information that such ward has recovered his reason, he shall immediately inquire into the facts, and, if he finds that such ward is of sound mind, he shall forthwith discharge such person from care and custody; and the guardian shall immediately settle his accounts and restore to such person all things remaining in his hands belonging or appertaining to such ward."
The Act of 1915 (Rem. Code, § 5967) providing for the commitment of insane persons, provides: "Whenever in the judgment of the
superintendent of any hospital for the insane any person in his charge shall have so far recovered as to make it safe for such patient and for the public to allow him to be at large, the superintendent may parole such patient and allow him to leave such hospital, and whenever in the judgment of the superintendent any patient under his charge has become sane, mentally responsible, and probably free from danger of relapse or recurrence of mental unsoundness, the superintendent shall discharge such patient from the hospital."
In the same section it is provided that a judge of the superior court may recommit any person who has been paroled by the superintendent of the hospital. The superior courts of this state are courts of general jurisdiction. They have power to hear and determine all matters, legal and equitable, and all special proceedings known to the common law, except in so far as these powers have been expressly denied. The power of the court to discharge a person committed as insane did not depend upon the statute which has been repealed. The court had inherent jurisdiction independent of statute. The power of a court to discharge or com- Insane personmit an insane per- power of court son is an inher- to release from hospital.
ent power of a court of equity. It is derived ex necessitate from the commonwealth. It rests in the sovereignty just as it rested in the King at common law, and is exercised now by a court of equity just as it was then exercised through the courts of chancery. If the power is bestowed upon another tribunal or person, it does not follow that the court is deprived of its jurisdiction. For the same reason of necessity it is held that the granted jurisdiction is cumulative and concurrent with that of a court of chancery. Re Sall, 59 Wash. 539, 140 Am. St. Rep. 885, 110 Pac. 32, 626; 14 R. C. L. 554-556; 22 Cyc. 1120. That the superior court has such general
powers has been held in the following cases: Moore v. Perrott, 2 Wash. 1, 25 Pac. 906; Krieschel v. Snohomish County, 12 Wash. 428, 41 Pac. 186; Filley v. Murphy, 30 Wash. 1, 70 Pac. 107; Reformed Presby. Church v. McMillan, 31 Wash. 643, 72 Pac. 502; Re Sall, supra; Re Ostlund, 57 Wash. 359, 135 Am. St. Rep. 990, 106 Pac. 1116; Sloan v. West, 63 Wash. 623, 116 Pac. 272; Alaska Bkg. & S. D. Co. v. Noyes, 64 Wash. 672, 117 Pac. 492; State ex rel. Keasal v. Superior Ct. 76 Wash. 291, 136 Pac. 147; Re Martin, 82 Wash. 226, 144 Pac. 42; Ritchie v. Trumbull, 89 Wash. 389, 154 Pac. 816. If this be
so, it follows that the repeal of § 1671 did not in any way affect the jurisdiction of the court to inquire into the sanity of a person who may be committed or paroled.
The power of the court to act independently of the statute is really confessed by counsel; for he grants that the court would have power to hear the issues tendered by the petitioner if he had brought a habeas corpus proceeding. If the court under its general equity powers has jurisdiction over insane persons,
the remedy or procedure is a matter of secondary consideration; for a court of equity has power not only to decree, but to enforce its decrees in its own way, in Courts-power to the absence of
enforce decrees. definite procedure. We so held in Re Sall, supra, where we upheld the appointment of a guardian for the estate of a nonresident ward in the absence of any statute or procedure.
In the case at bar Andrews was not confined to the hospital, but was out on a parole granted by one of the judges of the superior court of King county; and although it might be held that, when an insane person is confined and in charge of the superintendent of a hospital, he might be required, in the interest of a more orderly procedure, to claim his exemption from restraint by first applying to the superintendent of the hospital, it should not be held
when the petition shows that the patient is not so restrained, but is at large under a parole issued by the committing court.
No other question in the case was considered by respondent. We will not, therefore, anticipate them, pending an appeal after a trial upon the merits.
The writ will issue.
Ellis, Ch. J., and Holcomb, J., con
Mount, J., dissenting:
I cannot agree that this is a case for the issuance of the writ of mandate. Our statute provides, at § 1014, Rem. Code, that the writ "may be issued by any court, except a justice's or a police court, to any pel the performance of an act which inferior tribunal, to comthe law especially enjoins as a duty resulting from an office, trust or station.
And at § 1015: "The writ must be issued in all cases where there is not a plain, speedy and adequate remedy in the ordinary course of law."
This court, in State ex rel. Miller v. Superior Ct. 40 Wash. 555, 2 L.R.A. (N.S.) 395, 111 Am. St. Rep. 925, 82 Pac. 877, laid down the rule, in accordance with the statute, that these extraordinary writs would not issue in cases where there was a plain, speedy, and adequate remedy by appeal. We there said:
"We again announce the rule that the adequacy of the remedy by appeal, or in the ordinary course of law, is the test to be applied by this court in all applications for extraordinary writs, and not the mere question of jurisdiction or lack of jurisdiction, and that the adequacy of the remedy by appeal does not depend upon the mere question of delay or expense. There must be something in the nature of the action or proceeding that makes it apparent to this court that it will not be able to protect the rights of the litigants or afford them adequate redress, otherwise than through the exercise of this extraordinary jurisdiction.
(101 Wash. 81, 178 Pac. 257.)
"We desire to say, in conclusion, that the court is declaring no new rule at this time. The rule now adhered to has been the established one in this court since the decision in State ex rel. Townsend Gas & E. L. Co. v. Superior Ct. 20 Wash. 502, 55 Pac. 933, and ever since the announcement of that decision the court has uniformly treated the cases cited by the relator as overruled. To avoid further misunderstanding, the cases of State ex rel. Cummings v. Superior Ct. 5 Wash. 518, 32 Pac. 457, 771; State ex rel. Campbell v. Superior Ct. 7 Wash. 306, 34 Pac. 1103; State ex rel. Allen v. Superior Ct. 9 Wash. 668, 38 Pac. 206, and State ex rel. Stockman v. Superior Ct. 15 Wash. 366, 46 Pac. 395, and all other decisions of this court which make the question of the jurisdiction of the court below the sole test of jurisdiction in this court, on applications of this kind, are hereby overruled."
It was stated there, in language as apt as may be readily conceived, that these extraordinary writs will not be issued where there is a plain, speedy, or adequate remedy by appeal, and we have steadfastly, since that time, held to that rule, with the possible exception of of cases where the court has erred in granting or refusing to grant a change of venue; and in those cases we have held that the remedy by appeal was inadequate, and, for that reason alone, have issued writs of mandamus and prohibition. It is not claimed in this case, and cannot reasonably be claimed, that the relator here does not have an adequate remedy by appeal. As stated in the majority opinion, Mr. Andrews was adjudged to be insane. His wife was appointed guardian of his person and estate. Afterwards, Mr. Andrews was paroled to the care of his daughter, who filed an application in the lower court, alleging that his reason had returned, and praying the court to adjudge him again sane and to order the guardian to turn his property over to him as a sane person. In
answer to this petition Mrs. Andrews filed a demurrer, and upon the hearing of that demurrer the trial court construed a statute (Rem. Code, § 5967) to mean that the superior court did not have jurisdiction to determine whether the insane person was restored to sanity, and for that reason sustained the demurrer, and was about to dismiss the petition. If we may assume that the trial court erred in the construction of the statute referred to, and because of that error dismissed the application, or was about to do so, it is clear that the relator has as plain, speedy, and adequate a remedy by appeal as in any other case. Suppose that the simplest form of action is brought upon a promissory note. Suppose the defendant demurs to the complaint upon the ground that the court has no jurisdiction over the subject-matter. Suppose the court, in ruling upon the demurrer, construes a statute and sustains the demurrer to the complaint, and is about to dismiss the action. Can it be said that the plaintiff in such action has no plain, speedy, or adequate remedy by appeal, and therefore may review the error by mandamus? I think not. And yet the relator's remedy here is just as plain, just as speedy, and just as adequate as in the supposed case. In State ex rel. Langley v. Superior Ct. 74 Wash. 556, 134 Pac. 173, where we referred to a former opinion in that same case, 73 Wash. 110, 131 Pac. 482, holding that certain orders could not be reviewed in advance of final judgment, we said: "The basis of the majority opinion was that the relators had an adequate remedy by appeal. This, indeed, is the true test in all applications for extraordinary writs. State ex rel. Korsstrom v. Superior Ct. 48 Wash. 671, 94 Pac. 472; State ex rel. Carrau v. Superior Ct. 30 Wash. 700, 71 Pac. 648; State ex rel. Egbert v. Blumberg, 46 Wash. 270, 89 Pac. 708; State ex rel. Gabe v. Main, 66 Wash. 381, 119 Pac. 844; State ex rel. Townsend Gas & E.