Seele v. State Ex Rel. Roether , 1 Tex. Civ. App. 495 ( 1892 )

This is a prohibition suit, brought in the District Court of Comal County, wherein an original proceeding to annul a judgment rendered by the Justice Court was prohibited on the ground of want of jurisdiction of the Justice Court to grant such relief.

The justice of the peace before whom the proceedings were pending and the plaintiff in the proceeding to annul the judgment of the Justice Court were defendants. They answered by general and special exceptions to the sufficiency of the petition, and by plea to the jurisdiction of the District Court to grant the extraordinary writ of prohibition, and by general denial. On a final hearing, the writ of prohibition was perpetuated, and the respondents have appealed therefrom to this court.

The only question that we decide is, had the District Court, in 1888, jurisdiction to grant and perpetuate a writ of prohibition against proceedings about to be had in a Justice Court?

Prohibition acts directly upon the court, and is a common law writ that lies only when the matter to be prohibited is judicial in nature. It is preventive in character, and is ordinarily at common law used to prevent a court of inferior powers from usurping its jurisdiction in some judicial matter. It is issued by a court of superior jurisdiction to one that is inferior. This necessarily requires an investigation into the jurisdiction of the court that issues the writ and of that against which it is directed, in order to determine if it will lie.

If the court against which the writ is directed is free and independent of any supervisory control of the tribunal of superior jurisdiction, and is within the limits of its jurisdiction general in the sense that it has the power to hear and determine the subjects of its jurisdiction in its own way, then the writ would not lie, unless the law that created the superior tribunal conferred upon it the power to issue the writ.

Every court within this State jurisdiction that has the power to hear and determine judicial controversies is general in its jurisdiction over the subjects that they have cognizance of by the law of their creation; but all such courts are also of special jurisdiction, in the sense that they can not hear and determine subjects of controversy that are not embraced in the written law that creates and defines their powers. To the written law alone they look to ascertain when they have the power to hear and determine, and when this jurisdiction is prescribed it is restrictive of all other.

With us these principles of law apply as well to Justice Courts as they do to the District Courts.

There is no inherent power in the District Court, by virtue of its law and equity jurisdiction, to issue all writs that were known to common law and equity practice. For if such was the rule, it would permit the court to exercise a jurisdiction to meet the exigencies of each case, and would relieve it from the application of the principle, well settled with us, that it can not exceed the power conferred by the law that created it, and that the enumeration of these powers excludes the right to exercise others.

The present Constitution, as it existed when the writ of prohibition in this cause was issued and perpetuated, in conferring jurisdiction upon the District Courts, among other things, says:

"Said courts and the judges thereof shall have power to issue writs of habeas corpus in felony cases, mandamus, injunction, certiorari, and all writs necessary to enforce their jurisdiction."

The acts of the Legislature on the subject of the jurisdiction of the District Courts in this respect follow the Constitution. Neither by the Constitution nor by legislation thereunder is a supervisory control and jurisdiction given to the District Courts over Justice Courts or other inferior tribunals, as was given by the Constitution of 1845 and that of 1869.

The provisions of the Constitution quoted is all that has any bearing upon the question before us.

It is apparent that the omission from the present Constitution of that provision of the Constitution of 1845 and 1869 that conferred upon the District Court a supervisory control and jurisdiction over inferior courts, is equivalent to a legislative declaration that such jurisdiction shall not exist.

It is further apparent, that the writ issued in this case was not in furtherance of the jurisdiction of the District Court as necessary to the enforcement of its jurisdiction, as the judicial matter sought to be prohibited was pending in another tribunal of equal dignity with that of the District Court, in so far as its jurisdiction extended over subjects of which it had cognizance.

If the provision of the Constitution in question had included prohibition, as it did injunction and other named writs, it would have been within the jurisdiction of the District Court to have issued such writs in all cases that were permitted under the principles and usages of common law and equity practice, as is illustrated by the construction of the law in question in the case of County of Anderson v. Kennedy, 58 Tex. 621.

We find no provision in the law that conferred upon the District Court the power to issue the writ of prohibition.

Such being the case, we reverse the judgment of the court below, with instructions to dismiss the case.

Reversed and dismissed.