L. Co. v. Superior Ct. 20 Wash. 502, 55 Pac. 933. The authorities are unanimous to the effect that neither a writ of mandate nor other extraordinary writ can be used to perform the office of an appeal to review the judicial action of an inferior tribunal.”

There is no showing in this record, and none was attempted upon the oral argument, that any emergency exists, or that there is any danger of any rights or any property being lost by whatever delay may occur upon an appeal, should one be taken; but the relator comes here insisting that the writ should issue nevertheless. If the writ may issue in this case, then it may issue in all cases where a general demurrer, which goes to the jurisdiction either of the person or of the subject-matter, is sustained to a complaint. The issuance of the writ in this case again opens the door to appeals by writs of mandamus, and not in the ordinary way. This is what we sought to avoid when we announced the rule 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. I agree that jurisdiction is the power_to hear and determine causes. The trial court exercised that power. It decided the case upon a question of law. If that decision was erroneous, it may be reviewed by ordinary appeal. If the decision was right, it disposes of the case. I agree that the office of the writ of mandamus is to compel inferior tribunals to exercise their jurisdiction. The lower tribunal has acted in this case, and exercised its jurisdiction. I agree that prior to State ex rel. Miller v. Superior Ct. supra, this court had issued writs of man

damus where there was a remedy by appeal. But, as stated in that case, all those decisions were overruled where the question of jurisdiction of the court below was the sole test of jurisdiction in this court, and the quotation from the Langley Case, supra, shows that the rule has been adhered to where there was a remedy by appeal. The general rule in other states may be that errors of this kind may be reviewed by a writ of mandamus, but that is not the rule in this court, and we have frequently so held, because the statute of this state controls, and provides that such writs may be issued only where there is not a plain, speedy, and adequate remedy by appeal. In the cases referred to in the majority opinion, even in State ex rel. Martin v. Superior Ct. 97 Wash. 358, L.R.A.1917F, 905, 166 Pac. 630, which was a change of venue case, we concluded that there was no plain, speedy, and adequate remedy by appeal, and for that reason writs were issued. I would readily concede in this case that, if there was no adequate remedy, by appeal, then it would be a proper case for the issuance of the writ. I agree, of course, that the extraordinary writ of prohibition or mandamus may be a speedy and easy way of reviewing errors which occur in the trial court, but until the majority opinion becomes the law and reads out of the statute § 1015, as it undoubtedly does, and overrules State ex rel. Miller v. Superior Ct. supra, and numerous other cases holding to the same effect, I must withhold my concurrence in that practice.

Parker, J., concurs with Mount, J.
Petition for rehearing denied.

I. General rule, 583.

II. Judicial statements of rule, 586.

III. Doctrine limiting rule to ab initio refusal of jurisdiction, 592.

IV. As affected by question whether decision rests on a ruling of law or a determination of fact, 599. V. Existence of other remedies, 600.

On mandamus where the cause has been erroneously dismissed for insufficiency or lack of service, see note to Speckert v. Ray, post, 610.

On inadequacy of remedy by appeal or writ of error as affecting right to mandamus to inferior court, see note to Ketchum Coal Co. v. District Ct. post, 632.

On mandamus to compel court to reinstate or proceed with a hearing in an appeal that it has erroneously dismissed, see note to Floyd v. Sixth Judicial Dist. Ct. post, 655.

I. General rule.

The elementary rule that, subject to certain limitations or conditions, mandamus will lie for the purpose of setting inferior courts in motion when it is their duty to act and action has been either refused or unreasonably delayed, is here assumed. Another rule, which may be treated as one of the limitations or conditions to which the general rule is subject, must also be here assumed, i. e., mandamus cannot be invoked where the effect of its issue would be to substitute the command of the superior, for the judicial discretion of the inferior, tribunal. Such is ordinarily the result if the inferior court has already acted judicially, and cannot comply with the mandate without a modification or reversal of its judgment, decree, or order. A question raised by the subject of this annotation arises at this point. Is a dismissal of a cause, or a refusal to proceed therein, on the ground that the court lacks jurisdiction, such a judicial act? If it is, such a case would seem to fall within the second rule, and mandamus would not lie to compel the court to act if it had erroneously dismissed the cause, or had refused to proceed therein for supposed lack of jurisdiction. On the other hand, the conclusion that mandamus will always lie in such a case does not necessarily follow the holding that the case is not within the second rule, there being other conditions or limitations to the first rule.

No decisions, holding that a dismissal or a refusal to proceed on the ground that the court lacks jurisdic

tion is in every case a judicial act within the meaning of the second rule, have been found. In only a few decisions cited herein is this question discussed, and in those there is considerable difference of opinion as to the guiding rules for determining which cases are, and which are not, within the second rule. So, it may be said that all courts recognize the soundness of the general rule that mandamus will lie to compel an inferior court to take jurisdiction, where it has refused from the beginning to do so on the ground that it lacks jurisdiction; but a few courts refuse to issue the writ if the inferior court has judicially determined that it has no jurisdiction, and the courts are not agreed upon the extent to which the rule may be limited by other elements, such as the existence of a right to an appeal or writ of error.

In the reported case (STATE EX REL. MARTIN V. SUPERIOR CT. ante, 572) the court makes a distinction between cases in which the inferior tribunal decided that it had no inherent jurisdiction (jurisdiction over the subjectmatter), and those in which it held that it lacked jurisdiction to proceed in the particular case, because of defective service, etc. While this position may be supported by a few authorities, it would appear to be opposed in a practical way to the weight of authority, at least, so far as the latter part of the proposition goes. See note to Speckert v. Ray, above referred to.

Other courts have adopted the theory that, if the question of jurisdiction before the inferior court was one of fact, mandamus will not lie; but if it was purely a question of law, then there is no discretion exercised, and mandamus will be issued if the decision was erroneous. See cases cited to this point, infra.

There is a larger group of cases, but yet a comparatively small number, in which the courts apparently adopt the theory that the time and manner in which the question of jurisdiction. came before the inferior court are decisive of the question. If the court refuses from the beginning to take

jurisdiction of a case, upon the mistaken theory that it has no jurisdiction, mandamus will lie to compel it to proceed, but if it takes jurisdiction, and upon a plea to the jurisdiction, or in some other way, judicially determines, although erroneously, that it has no jurisdiction, mandamus will not lie. See cases cited, infra. It should be noted that the United States cases cited to this proposition, infra, seem to be based largely upon the fact that under the Federal practice an appeal or writ of error is available to the complainant in the latter class of cases. See cases cited, V. infra.

Although the application of the rule that mandamus lies to compel an inferior court to exercise jurisdiction, when it has erroneously decided that it does not have jurisdiction, is by many courts subjected to various limitations and conditions, practically all courts uphold the general rule itself. United States.-Ex parte Bradstreet (1833) 7 Pet. 647, 8 L. ed. 815; Knickerbocker Ins. Co. v. Comstock (1873) 16 Wall. 258, 21 L. ed. 493; Chicago & A. R. Co. v. Wiswall (1875) 23 Wall. 507, 23 L. ed. 103; Ex parte Schollenberger (1878) 96 U. S. 369, 24 L. ed. 853 (see 5 W. N. C. 405, Fed. Cas. No. 12,475a, in connection); Ex parte Brown (1886) 116 U. S. 401, 29 L. ed. 676, 6 Sup. Ct. Rep. 587 (rule not applied); Ex parte Parker (1887) 120 U. S. 737, 30 L. ed. 818, 7 Sup. Ct. Rep. 767; Re Parker (1889) 131 U. S. 221, 33 L. ed. 123, 9 Sup. Ct. Rep. 708; Re Pennsylvania Co. (1890) 137 U. S. 451, 34 L. ed. 738, 11 Sup. Ct. Rep. 141 (rule not applied; see also Rose's Notes to these cases); Re Hohorst (1893) 150 U. S. 653, 37 L. ed. 1211, 14 Sup. Ct. Rep. 221; Re Grossmayer (1900) 177 U. S. 48, 44 L. ed. 665, 20 Sup. Ct. Rep. 535 (rule not applied); Re Connaway (1900) 178 U. S. 421, 44 L. ed. 1134, 20 Sup. Ct. Rep. 951; Re Simmons (1918) 247 U. S. 231, 62 L. ed. 1094, 38 Sup. Ct. Rep. 497; Finn v. Hoyt (1892) 52 Fed. 83; United States ex rel. Mudsill Min. Co. v. Swan (1895) 13 C. C. A. 77, 31 U. S. App. 112, 65 Fed. 647 (rule not applied). Arkansas. Gilbert V. Shaver (1909) 91 Ark. 231, 120 S. W. 833.

California.-Beguhl v. Swan (1870) 39 Cal. 411; Levy v. Superior Ct. (1885) 66 Cal. 292, 5 Pac. 353 (rule not applied); Temple v. Superior Ct. (1886) 70 Cal. 211, 11 Pac. 699; Aldrich v. Superior Ct. (1901) 135 Cal. 12, 66 Pac. 846 (rule not applied); Cahill v. Superior Ct. (1904) 145 Cal. 42, 78 Pac. 467; De La Beckwith v. Superior Ct. (1905) 146 Cal. 496, 89 Pac. 717; San Francisco Gas & E. Co v. Superior Ct. (1908) 155 Cal. 30, 99 Pac. 359, 17 Ann. Cas. 933; Golder Gate Tile Co. v. Superior Ct. (1911) 159 Cal. 474, 114 Pac. 978; Scott v Shields (1908) 8 Cal. App. 12, 96 Pac. 385; Hill v. Superior Ct. (1911) 15 Cal. App. 307, 114 Pac. 805; Blake v Superior Ct. (1911) 17 Cal. App. 51. 118 Pac. 448; Widrin v. Superior Ct (1911) 17 Cal. App. 93, 118 Pac. 550 Moch v. Superior Ct. (1919) App., 179 Pac. 440.

Cal

Dakota. Territory ex rel. Travelers' Ins. Co. v. Judge of District Ct. (1888) 5 Dak. 275, 38 N. W. 429. Florida. Ex parte Henderson (1855) 6 Fla. 279; Anderson v. Brown (1855) 6 Fla. 299; State ex rel. Colcord v. Young (1893) 31 Fla. 594, 19 L.R.A. 636, 34 Am. St. Rep. 41, 12 So. 673 (arguendo); State ex rel. Turner v. Hocker (1895) 36 Fla. 358, 18 So 767; State ex rel. Birmingham Trust & Sav. Co. v. Reeves (1902) 44 Fla. 179, 32 So. 814; State ex rel. Duke v. Wills (1905) 49 Fla. 380, 38 So. 289; Crump v. Branning (1917) - Fla. 77 So. 228; State ex rel. Hopps v. Horne (1918) - Fla. -; 77 So. 672. Idaho. Hill v. Morgan (1904) 9 Idaho, 718, 76 Pac. 323; Fox v. Flynn (1915) 27 Idaho, 580, 150 Pac. 44.

Kansas.-State ex rel. Morris v. Webb (1886) 34 Kan. 710, 9 Pac. 770; Emporia v. Randolph (1895) 56 Kan. 117, 42 Pac. 376.

Kentucky. Hoke v. Com. (1881) 79 Ky. 567; Com. v. Newell (1902) 114 Ky. 419, 71 S. W. 4.

Louisiana.-State ex rel. Cobb v. Judges of Circuit Ct. of Appeals (1880) 32 La. Ann. 774; State ex rel. McGee v. Judges of Ct. of Appeals (1881) 33 La. Ann. 180; State ex rel. Harper v. Judges of Ct. of Appeals (1881) 33 La. Ann. 358; State ex rel.

New Orleans Merchants' Mut. Ins. Co. v. Mayo (1881) 33 La. Ann. 1070; State ex rel. Winter v. Judges of Ct. of Appeals (1881) 33 La. Ann. 1096; State ex rel. Davidson v. Judges of Ct. of Appeals (1885) 37 La. Ann. 109; State ex rel. Lacaze v. Judges of Ct. of Appeals (1890) 42 La. Ann. 1087, 8 So. 267; State ex rel. Beauvais v. Judges of Ct. of Appeals (1896) 48 La. Ann. 672, 19 So. 617; State ex rel. Grunewald v. Judges of Ct. of Appeals (1901) 105 La. 217, 29 So. 816; Reynolds v. Carroll (1905) 114 La. 610, 38 So. 470; McClenny v. Webb (1905) 114 La. 779, 38 So. 558.

Michigan. People ex rel. Hosie v. Judges of Wayne Circuit Ct. (1871) 22 Mich. 493; People ex rel. Comstock v. Judge of Wayne Circuit Ct. (1874) 30 Mich. 98; People ex rel. Burns v. Judge of Superior Ct. (1879) 40 Mich. 630; People ex rel. Robinson v. Swift (1886) 59 Mich. 529, 26 N. W. 694; Coot v. Willett (1892) 93 Mich. 304, 53 N. W. 395; Brown v. Pontiac Min. Co. (1895) 105 Mich. 653, 63 N. W. 1000; Taylor v. Montcalm Circuit Judge (1900) 122 Mich. 692, 81 N. W. 865.

Minnesota.-State ex rel. Prall v. District Ct. (1914) 126 Minn. 501, 148 N. W. 463, Ann. Cas. 1915D, 198 (lower court thought its jurisdiction discretional).

Missouri.-Costello v. St. Louis Circuit Ct. (1859) 28 Mo. 259 (rule recognized but not applied); State ex rel. Harris v. Laughlin (1882) 75 Mo. 358; State ex rel. Monnet Mill. Co. v. Neville (1900) 157 Mo. 386, 51 L.R.A. 95, 57 S. W. 1012; State ex rel. Title Guaranty & T. Co. v. Broaddus (1908) 210 Mo. 1, 108 S. W. 544; State ex rel. Weichart v. County Ct. (1911) 236 Mo. 140, 139 S. W. 125; State ex rel. Modern Woodmen v. Broaddus (1912) 239 Mo. 359, 143 S. W. 455; State ex rel. McDermott Realty Co. v. McElhinney (1912) 246 Mo. 44, 151 S. W. 457; State ex rel. Snow Steam Pump Works v. Homer (1913) 249 Mo. 58, 155 S. W. 405; State ex rel. Fleming v. Shackelford (1914) 263 Mo. 52, 172 S. W. 347; State ex rel. Knisely v. Holtcamp (1915) 266 Mo. 347, 181 S. W. 1007: State ex rel. Newell v. Cave

(1917) 272 Mo. 653, 199 S. W. 1014, writ of error dismissed in (1918) 246 U. S. 650, 62 L. ed. 921, 38 Sup. Ct. Rep. 334.

Montana.-State ex rel. Mathews v. Eddy (1891) 10 Mont. 311, 25 Pac. 1032; State ex rel. Kellogg v. District Ct. (1893) 13 Mont. 370, 34 Pac. 298; State ex rel. Northern P. R. Co. v. Loud (1900) 24 Mont. 428, 62 Pac. 497.

Nevada. Cavanaugh v. Wright (1866) 2 Nev. 166; Floral Springs Water Co. v. Rives (1880) 14 Nev. 431; Floyd v. Sixth Judicial Dist. Ct. post. 646; State ex rel. Howe v. Moran (1914) 37 Nev. 404, 142 Pac. 534.

New York. Re Runk (1911) 200 N. Y. 447, 94 N. E. 363; People ex rel. Acritelli v. Foster (1903) 40 Misc. 19, 81 N. Y. Supp. 212, affirmed in (1903) 87 App. Div. 193, 84 N. Y. Supp. 97; Kelsey v. Church (1906) 112 App. Div. 408, 98 N. Y. Supp. 535.

North Dakota.-State ex rel. Heffron v. District Ct. (1913) 26 N. D. 32, 143 N. W. 143.

Ohio. Re Turner (1832) 5 Ohio, 542; State ex rel. Snell v. McCarty (State ex rel. Funck v. McCarty) (1895) 52 Ohio St. 363, 27 L.R.A. 534, 39 N. E. 1041; State ex rel. Smith v. Smith (1903) 69 Ohio St. 196, 68 N. E. 1044.

V.

Brown

(1902) 100 Va. 702, 42 S. E. 675 (arguendo).

Washington.-State ex rel. Shannon v. Hunter (1891) 3 Wash. 92, 27 Pac. 1076; State ex rel. Hill v. Lichtenberg (1892) 4 Wash. 553, 30 Pac. 659; State ex rel. Smith v. Parker (1895) 12 Wash. 685, 42 Pac. 113; State ex rel. Smith v. McClinton (1897) 17 Wash. 45, 48 Pac. 740; State ex rel. Townsend Gas & E. L. Co. v. Superior Ct. (1899) 20 Wash. 502, 55 Pac. 933 (rule not applied); State ex rel. Strohl v. Superior Ct. (1899) 20 Wash. 545, 45 L.R.A. 177, 56 Pac. 35; State ex rel. McDonald v. Steiner (1906) 44 Wash. 150, 87 Pac. 66 (dictum).

West Virginia.-Wheeling Bridge & Terminal R. Co. v. Paull (1894) 39 W. Va. 142, 19 S. E. 551.

England.-Reg. v. Leicester Freemen (1850) 15 Q. B. 671, 117 Eng. Reprint, 613, 14 Jur. 914, 19 L. J. Q. B. N. S. 413; Re Brighton Intercepting Sewers Bd. (1882) L. R. 9 Q. B. Div. 723; Rex v. Justices of Kent (1811) 14 East, 395, 104 Eng. Reprint, 653; Reg. v. Bingham (1843) 4 Q. B. 877, 114 Eng. Reprint, 1127, 3 Eng. Ry. & C. Cas. 390; Reg. v. Phillimore (1884) 51 L. T. 205, L. R. 14 Q. B. Div. 474, note, 32 Week. Rep. 593, 48 J. P. 774; Reg. v. Richards (1851) 20 L. J. Q. B. N. S. 351, 2 Lowndes M. & P. 263; Reg. v. Judge of Southampton County Ct. (1891) 65 L. T. N. S. 320; Reg. v. Percy (1873) L. R. 9 Q. B. 64, 43 L. J. Mag. Cas. N. S. 45, 22 Week. Rep. 72.

Canada.-Re McKenzie (1871) 31 U. C. Q. B. 1; Re Allan (1885) 10 Ont. Rep. 110; Re Norris (1897) 28 Ont. Rep. 636; Re Sawyer Massey Co. (1897) 28 Ont. Rep. 662; Rex v. Meehan (1902) 3 Ont. L. Rep. 567; Green v. Crawford (1910) 21 Ont. L. Rep. 36.

The subject of this annotation excludes cases in which the writ was refused on the ground that, in the opinion of the superior court, the inferior court was correct in holding that it had no jurisdiction. But there are a few such cases sometimes cited erroneously as opposed to the general rule as above stated. parte Goldthwaite (1898) 120 Ala. 481,

Ex

24 So. 389; State ex rel. Grunewald v. Judges of Ct. of Appeals (1901) 105 La. 217, 29 So. 816; State ex rel. McGee v. Judges of Ct. of Appeals (1881) 33 La. Ann. 180; State ex rel. Suberville v. Judges of Ct. of Appeals (1893) 45 La. Ann. 1319, 14 So. 118; State ex rel. Liggins v. Judges of First Circuit Ct. of Appeals (1895) 47 La. Ann. 1516, 18 So. 510; State ex rel. Mutual Nat. Bank v. Judges of Ct. of Appeals (1897) 49 La. Ann. 1084, 22 So. 193; First Nat. Bank v. Rowland (1907) 45 Tex. Civ. App. 3, 99 S. W. 1043; State ex rel. Barnes v. Second Dist. Ct. (1909) 36 Utah, 396, 104 Pac. 282; United States ex rel. Mudrill Min. Co. v. Swan (1895) 13 C. C. A. 77, 31 U. S. App. 112, 65 Fed. 647; Ex parte Des Moines & M. R. Co. (1881) 103 U. S. 794, 26 L. ed. 461 (see also Rose's Notes to this case); Re Grossmayer (1900) 177 U. S. 48, 44 L. ed. 665, 20 Sup. Ct. Rep. 535.

Where a court refuses to determine a cause, and erroneously orders it stricken from the calendar for supposed lack of jurisdiction, without having assumed jurisdiction, mandamus will lie to compel it to determine the cause on the merits. Beguhl v. Swan (1870) 39 Cal. 411.

II. Judicial statements of rule. In San Francisco Gas & E. Co. v. Superior Ct. (1908) 155 Cal. 30, 99 Pac. 359, 17 Ann. Cas. 933, supra, where mandamus was issued to compel an inferior court to issue a commission to take the deposition of a witness for possible use by complainant as defendant in a civil suit which was pending in the supreme court on appeal from a refusal to grant a new trial, the court said: "To the granting of this relief it is objected, in the first place, that the order of the superior court denying petitioner's motion for a commission was an order made after final judgment in the action of Linforth v. Gas Co., and as such is reviewable on appeal (Code Civ. Proc. § 963); and, since appeal is a plain, speedy, and adequate remedy, that mandamus will not lie (Code Civ. Proc. § 1086). This position assumes that the superior court had jurisdiction to make the order sought