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(101 Wash. 81, 178 Pac. 257.) sions had heard the application Superior Ct. 20 Wash. 502, 55 Pac. made by counsel on the part of the 933. We have had resort to the journeymen millers; but they also original briefs, and can say, in ad

, admitted that the counsel who op- dition to what we said of it in the posed it had insisted that by the Martin Case, that the question put construction which had been put by counsel to the court was not upon the Act of Elizabeth the dis- whether a court would compel an cretion of the magistrates in the inferior court to take jurisdiction assessment of wages was confined of a case where jurisdiction had to iaborers and servants in hus- been disclaimed, but whether the bandry, and that the sessions had, court would compel the satisfacon that ground, rejected the appli- tion of a judgment through the proc

a cation. Upon which Lord Ellen- ess of a contempt proceeding pendborough, Ch. J., observed that it ing an appeal upon the merits. The was evident that the magistrates court was exercising an acknowlhad never exercised their discretion edged jurisdiction; it had passed on at all upon the question whether the the merits. Its judgment, if ill application was fit to be granted or founded, rested in error, and the not, but appeared to have consid- writ was properly denied. There ered that they had no jurisdiction is certainly nothing in the decision, to hear it; therefore, they could not when read with the record in mind, be said to have already heard the that makes it an authority against application.

our holding. Upon the authority "We do not, however, by grant

by grant of that case, this court refused in ing this mandamus, at all inter- two subsequent cases to compel the fere with the exercise of that dis- superior court to take jurisdiction. cretion which the legislature meant State ex rel. Barbo v. Hadley, 20 to confide to the justices of the Wash. 520, 56 Pac. 29; State ex rel. peace in sessions; we only say that McIntyre v. Superior Ct. 21 Wash. they have a discretion to exercise; 108, 57 Pac. 352. and therefore they must hear the Next in order is State ex rel. application; but, having heard it, it Romano v. Yakey, 43 Wash. 15, 85 rests entirely with them to act or Pac. 990, 9 Ann. Cas. 1071. Applinot upon it as they think fit."

cation was made to a justice of the It is clearly demonstrable that peace for the issuance of a criminal the law is settled by the great warrant.

warrant. The justice denied the weight of authority that a court warrant upon the false assumption will supervise a lower court to the that he had no power to issue the extent that it will compel it to take warrant, maintaining under the jurisdiction where it has erroneous- statutes that his act would be an ly denied its jurisdiction.

interference with the duties of the Coming now to our own decisions, prosecuting attorney. Although the in State ex rel. Martin v. Superior writ was denied because directed to Ct. 97 Wash. 358, L.R.A.1917F, 905,

a judge by name, and not to the 166 Pac. 630, we endeavored to

court, this court said: show that in most of the cases

“Section 6695, Bal. Code (P. C. $ where a writ had been denied it 3114), permits any person to make was because of the holding that ap- complaint that a criminal offense peal was an adequate remedy. And has been committed, and if the magwe think in all of them the jurisdic- , istrate to whom the complaint is tion of the court over the subject- made wrongfully refuses to act in matter was not questioned. It may the matter, we think the party apbe said that the genesis of all the plying for the warrant has a suffisubsequent confusion and conflict, cient interest in the performance of or apparent conflict, in our own de- the public duty to compel action by cisions is in the case of State ex mandamus. rel. Townsend Gas & E. L. Co. v. “Section , supra,

under 4 A.L.R.-37.


which the application for the war- time fixed by our statutes for the rant in this case was made, provides contest of a will. In other words, that complaint may be made to a the court had no jurisdiction to justice of the peace or judge of the hear and determine. Proceeding superior court. Had this applica- upon the theory that the question tion been made to the superior raised by the record rested in the court of King county, we would find definition of that term as a thing no obstacle in the way of running a absolute, and not as resting in the writ against that court.”

determination of some fact, or The next case, and one which whether

whether the court had obtained may be cited as an authority against jurisdiction of the person through a us, is that of State ex rel. Piper v. proper compliance with the statutes Superior Ct. 45 Wash. 196, 87 Pac. providing for the manner of bring1120. There the judge of the su- ing parties into court, or acquiring perior court refused to proceed with jurisdiction of a subject-matter adthe trial of a case. A writ of man- mittedly within the jurisdiction of damus was refused. But the case the court, we said: “It is contenddoes not rest upon, nor does it do ed that there is a plain, speedy, and violence to, the broad principles adequate remedy by appeal, and for which we are asserting. The judge that reason the writ in any event refused to proceed because the serv- should not issue. But the law apice had been made by publication, pears to be that, where the court is when the law made no provision for proceeding with a case without first such manner of service in that kind having acquired jurisdiction, it preof a case. The court acted judicial- sents a proper case for the invocaly. It adjudged a fact and con- tion of the writ of prohibition. strued a law. It determined from White v. Superior Ct. 126 Cal. 245, the record that the statutes provid- 58 Pac. 450; State ex rel. Alladio v. ing for the service of the process of Superior Ct. 17 Wash. 54, 48 Pac. the court had not been complied 733; State ex rel. Mackintosh v. Suwith. This clearly was a matter perior Ct. 45 Wash. 248, 88 Pac. resting in error, and was review- 207. In the case last cited, speaking able by appeal.

of the proper function of the writ, In the case of State ex rel, it is said: "The function of a writ Murphy v. Superior Ct. 73 Wash. of prohibition is to arrest proceed507, 131 Pac. 1136, the Piper Case ings which are without, or in exwas relied upon as authority. It

cess of, jurisdiction, and not to rewas distinguished. This case, in view errors in matters of procedure our opinion, does not bear directly, where jurisdiction exists.” one way or the other, upon the case But if, after all, it be said with we have at bar; for the mandamus

any assurance that we have held to was sought to compel the court to the contrary of our present posiproceed with the trial of the case, tion, it can be said with the same or to enter a judgment of dismissal.

assurance that we have as often The court had, to a certain extent, held the other way. We have not exercised its jurisdiction.

always differentiated between inIt is agreed by all text-writers, herent power to hear and power to and has been affirmed by this court, proceed.

proceed. This has resulted in a that a writ of prohibition is the confusion in our decisions. With counterpart of the writ of man- this distinction preserved, the law is date. The one is directed to compel clear. Where there is a lack of inaction; the other to prohibit it. herent jurisdiction in the court it

In State ex rel. Wood v. Superior self, a writ of prohibition will lie to Ct. 76 Wash. 27, 135 Pac. 494, the restrain it from further proceedsuperior court was proceeding to ings; or, where the court has hear and determine a will contest, erroneously decided that such inwhich had been begun after the herent jurisdiction is lacking, man(101 Wash, 81, 172 Pac. 257.) damus will lie to compel it to enter- superintendent of any hospital for tain the cause, and to hear and the insane any person in his charge determine. Where, however, the shall have so far recovered as to question is whether the court, acting make it safe for such patient and within the scope of its admitted for the public to allow him to be at jurisdiction, has acquired jurisdic- large, the superintendent may pation over the parties or the particu- role such patient and allow him to lar subject-matter, the writ will not leave such hospital, and whenever issue. In such a case the court is in the judgment of the superintendexercising its judicial function in ent any patient under his charge has passing on the question, not wheth- become sane, mentally responsible, er it has inherent jurisdiction, but and probably free from danger of whether it has acquired jurisdiction relapse or recurrence of mental unor a right to proceed within the lim- soundness, the superintendent shall it of an admitted jurisdiction. If, discharge such patient from the in the exercise of its discretion or hospital.” judgment, it commits error, the In the same section it is provided proper remedy is by appeal, and that a judge of the superior court not by writ of prohibition or man- may recommit any person who has damus. Viewed in this light, the been paroled by the superintendent decision in the Piper Case is en- of the hospital. The superior courts tirely consistent; for there the court of this state are courts of general did not hold that it lacked juris- jurisdiction. They have power to diction inherently, but simply that hear and determine all matters, its jurisdiction had not been prop- legal and equitable, and all special erly invoked.

proceedings known to the common That the court has jurisdiction of law, except in so far as these powthe subject-matter of this case, and ers have been expressly denied. ought to hear the petition of the re- The power of the court to discharge lator and enter a judgment upon a person committed as insane did the issues tendered by the answer not depend upon the statute which of the guardian, we have no doubt. has been repealed.

has been repealed. The court had Counsel admits that prior to the en- inherent jurisdiction independent actment of the Probate Code of of statute. The power of a court to 1917 (Laws 1917, p. 642) the court, discharge or comacting in probate, had jurisdiction mit an insane per- power of court to inquire into the sanity of a per

is an
inher. to release from

hospital, son who had been adjudged to be ent power of a insane. Rem. Code, $ 1671, which court of equity. It is derived ex was repealed by the Act of 1917, necessitate from the commonread as follows: "Whenever the

wealth. It rests in the sovereignty court shall receive information that just as it rested in the King at such ward has recovered his rea

common law, and is exercised now son, he shall immediately inquire by a court of equity just as it was into the facts, and, if he finds then exercised through the courts of that such ward is of sound mind, he chancery.

chancery. If the power is beshall forthwith discharge such per- stowed upon another tribunal or son from care and custody; and the

person, it does not follow that the guardian shall immediately settle court is deprived of its jurisdiction. his accounts and restore to such

For the same reason of necessity it person all things remaining in his is held that the granted jurisdichands belonging or appertaining to tion is cumulative and concurrent such ward."

with that of a court of chancery. The Act of 1915 (Rem. Code, ß Re Sall, 59 Wash. 539, 140 Am. St. 5967) providing for the commit- Rep. 885, 110 Pac. 32, 626; 14 R. C. ment of insane persons, provides: L. 554-556; 22 Cyc. 1120. That the "Whenever in the judgment of the superior court has such general


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powers has been held in the follow- when the petition shows that the ing cases : Moore v. Perrott, 2

Perrott, 2 patient is not so restrained, but is Wash. 1, 25 Pac. 906; Krieschel v. at large under a parole issued by Snohomish County, 12 Wash. 428, the committing court. 41 Pac. 186; Filley v. Murphy, 30 No other question in the case was Wash. 1, 70 Pac. 107; Reformed considered by respondent. We will Presby. Church v. McMillan, 31 not, therefore, anticipate them, Wash. 643, 72 Pac. 502; Re Sall, pending an appeal after a trial upon

. supra; Re Ostlund, 57 Wash. 359, the merits. 135 Am. St. Rep. 990, 106 Pac. The writ will issue. 1116; Sloan v. West, 63 Wash. 623,

Ellis, Ch. J., and Holcomb, J., con116 Pac. 272; Alaska Bkg. & S. D.

cur. Co. v. Noyes, 64 Wash. 672, 117 Pac. 492; State ex rel. Keasal v.

Mount, J., dissenting: Superior Ct. 76 Wash. 291, 136 Pac.

I cannot agree that this is a case

for the issuance of the writ of man147; Re Martin, 82 Wash. 226, 144 Pac. 42; Ritchie v. Trumbull, 89

date. Our statute provides, at § Wash. 389, 154 Pac. 816. If this be

1014, Rem. Code, that the writ B0, it follows that the repeal of $

“may be issued by any court, except 1671 did not in any way affect the

a justice's or a police court, to any inferior tribunal,

to comjurisdiction of the court to inquire into the sanity of a person who may

pel the performance of an act which be committed or paroled.

the law especially enjoins as a duty | The power of the court to act in- resulting from an office, trust of


station. dependently of the statute is really

And at $ 1015: “The writ must confessed by counsel; for he grants that the court would have power to

be issued in all cases where there is hear the issues tendered by the pe

not a plain, speedy and adequate titioner if he had brought a habeas

remedy in the ordinary course of

law." corpus proceeding. If the court

This court, in State ex rel. Miller under its general equity powers has jurisdiction over insane persons,

v. Superior Ct. 40 Wash. 555, 2 the remedy or procedure is a matter

L.R.A.(N.S.) 395, 111 Am. St. Rep. of secondary consideration; for a

925, 82 Pac. 877, laid down the rule, court of equity has power not only

in accordance with the statute, that to decree, but to enforce its decrees

these extraordinary writs would in its own way, in

not issue in cases where there was Courts-power to the absence of a

a plain, speedy, and adequate remdefinite procedure. edy, by appeal." We there said:

"We again We so held in Re Sall, supra, where

announce the rule we upheld the appointment of a

that the adequacy of the remedy by

appeal, or in the ordinary course of guardian for the estate of a nonresident ward in the absence of any law, is the test to be applied by this statute or procedure.

court in all applications for extraor

dinary writs, and not the mere In the case at bar Andrews was not confined to the hospital, but question of jurisdiction or lack of

jurisdiction, and that the adequacy was out on a parole granted by one

of the remedy by appeal does not of the judges of the superior court of King county; and although it depend upon the mere question of

. might be held that, when an insane

something in the nature of the acperson is confined and in charge of

tion or proceeding that makes it the superintendent of a hospital, he

apparent to this court that it will might be required, in the interest of not be able to protect the rights of a more orderly procedure, to claim the litigants or afford them adenis exemption from restraint by quate redress, otherwise than first applying to the superintendent through the exercise of this extraorof the hospital, it should not be held dinary jurisdiction.

enforce decrees.

(101 Wash. 81, 173 Pao. 257.) "We desire to say, in conclusion, answer to this petition Mrs. Anthat the court is declaring no new drews filed a demurrer, and upon rule at this time. The rule now ad- the hearing of that demurrer the hered to has been the established trial court construed a statute one in this court since the decision (Rem. Code, § 5967) to mean that in State ex rel. Townsend Gas & E. the superior court did not have L. Co. v. Superior Ct. 20 Wash. 502, jurisdiction to determine whether 55 Pac. 933, and ever since the an- the insane person was restored to nouncement of that decision the sanity, and for that reason

, suscourt has uniformly treated the tained the demurrer, and was about cases cited by the relator as over- to dismiss the petition. If we may ruled. To avoid further misunder- assume that the trial court erred in standing, the cases of State ex rel. the construction of the statute reCummings v. Superior Ct. 5 Wash. ferred to, and because of that error 518, 32 Pac. 457, 771; State ex rel. dismissed the application, or was Campbell v. Superior Ct. 7 Wash. about to do so, it is clear that the 306, 34 Pac. 1103; State ex rel. Al- relator has as plain, speedy, and adelen v. Superior Ct. 9 Wash. 668, 38 quate a remedy by appeal as in any Pac. 206, and State ex rel. Stock- other case. Suppose that

that the man v. Superior Ct. 15 Wash. 366, simplest form of action is brought 46 Pac. 395, and all other decisions upon a promissory note. Suppose of this court which make the ques- the defendant demurs to the comtion of the jurisdiction of the court plaint upon the ground that the below the sole test of jurisdiction in court has no jurisdiction over the this court, on applications of this subject-matter. Suppose the court, kind, are hereby overruled.”

in ruling upon the demurrer, conIt was stated there, in language strues a statute and sustains the deas apt as may be readily conceived,

murrer to the complaint, and is that these extraordinary writs will about to dismiss the action. Can it not be issued where there is a plain, be said that the plaintiff in such speedy, or adequate remedy by ap- action has no plain, speedy, or adepeal, and we have steadfastly, since quate remedy by appeal, and therethat time, held to that rule, with fore may review the error by manthe possible exception of cases damus? I think not. And yet the where the court has erred in grant- relator's remedy here is just as ing or refusing to grant a change plain,

plain, just as speedy, and just as of venue; and in those cases we adequate as in the supposed case. In have held that the remedy by appeal

State ex rel. Langley v. Superior Ct. was inadequate, and, for that rea

74 Wash. 556, 134 Pac. 173, where son alone, have issued writs of man

we referred to a former opinion in damus and prohibition. It is not

that same case, 73 Wash. 110, 131 claimed in this case, and cannot

Pac. 482, holding that certain orreasonably be claimed, that the re

ders could not be reviewed in adlator here does not have an ade

vance of final judgment, we said:

“The basis of the majority opinion quate remedy by appeal. As stated in the majority opinion, Mr. An

was that the relators had an adedrews was adjudged to be insane.

quate remedy by appeal. This, inHis wife was appointed guardian

deed, is the true test in all applicaof his person and estate. After

tions for extraordinary writs. State wards, Mr. Andrews was paroled to

ex rel. Korsstrom v. Superior Ct. 48 the care of his daughter, who filed

Wash. 671, 94 Pac. 472; State ex an application in the lower court, rel. Carrau v. Superior Ct. 30 Wash. alleging that his reason had re

700, 71 Pac. 648; State ex rel. Egturned, and praying the court to ad- bert v. Blumberg, 46 Wash. 270, 89 judge him again sane and to order Pac. 708; State ex rel. Gabe v. the guardian to turn his property Main, 66 Wash. 381, 119 Pac. 844;

, , over to him as a sane person. In State ex rel. Townsend Gas & E.

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