People of the Territory ex rel. Marks v. Hills , 5 Utah 410 ( 1888 )

Henderson, J.:

In both these canses a writ of prohibition is petitioned for, to prohibit tlie defendant from further proceeding in civil causes now pending before him. The defendant is a commissioner of tbis court, and is proceeding, against the objection of tbe relators, to exercise jurisdiction over tbem in civil causes now pending against them, respectively, before tbe said defendant at the city and precinct of Provo, in Utab county. Tbe residence of tbe parties in botb of said actions is sucb that a justice of tbe peace, acting as such in said Provo city and precinct, would have no jurisdiction over tbe relators under the statutes of tliis territory. These facts and conditions are conceded. On the presentation of the petitions, this court was inclined to leave the relators to their remedy in the cases by appeal or certiorari, but we are urged by counsel for all the parties to hear arguments, and determine the territorial limits of a commissioner’s jurisdiction when acting as a justice of the peace.

The defendant claims jurisdiction over the relators, and the right to proceed in the cases, under section 7 of the act of Congress of March 4, 1887, known as the “Edmunds-Tucker Act,” which is as follows: “That commissioners appointed by the supreme court and district courts in the Territory of Utah shall possess and may exercise all the powers and jurisdiction that are or may be possessed or exercised by justices of the peace in said territory, under the laws thereof, and the same powers conferred by law on commissioners appointed by circuit courts of the United States.” It is argued by counsel for defendant that the limitation in the section quoted to “powers and jurisdiction” refers only to subject-matter, and only limits the jurisdiction of commissioners to^ the subjects or causes of action over which justices have jurisdiction, but that as the officers whom Congress has made justices are officers of territorial jurisdiction; therefore, they may exercise and perform the duties of justices of the peace in any part of the territory, and, acting as such in any part or precinct of the territory, they may issue their process, to, and it may be served anywhere in the territory; and that they thereby acquire jurisdiction over the parties, notwithstanding the statutes of the territory providing-territorial limits beyond which parties shall not be summoned before a justice of the peace. This argument, in one sense, and to a limited extent, is no doubt correct. The commissioners appointed by this court' are not appointed to exercise their duties in, and their official character is not confined to, any particular part of the territory, but they are commissioners over the whole territory, and there is probably no limit as to the place where they may act as such; but, when a commissioner at any place or precinct in the territory assumes the duties of a justice of the peace, under the act in question, was it the intention of Congress to do more than to duplicate in Mm the office of justice of the peace at that place? We think not. If this defendant can issue his summons from and returnable at Provo precinct, directed to a resident of Juab county, and upon its service in that county take jurisdiction over him, then it is plain that he exercises a power and jurisdiction that no justice of the peace can exercise.

We are of opinion that when a commissioner proceeds to exercise the powers and jurisdiction of a justice of the peace under the statute in question, at any particular place or precinct, he has the same powers and jurisdiction over subjects and persons that he would have if he were a legally constituted justice of the peace, authorized and empowered by the laws of the territory to act and exercise the duties of his office at that place or precinct, and no other or greater. The construction contended for by counsel for defendant would lead to results unjust, burdensome, and utterly at variance with the policy which, under all systems of jurisprudence in this country, provides inferior courts for the determination of local controversies of limited importance. Under it a citizen might be summoned to remote parts of the territory hundreds of miles from his residence, to answer the most trivial causes, and be there compelled to select juries; and in case be saw fit, or sufficient cause existed, to remove the case under the statute from the commissioner who issues the process, to have the cause against him transferred to a justice who would have no original.jurisdiction, and, in case of appeal, the cause go into a district court other than the one in which he resides or was served. Indeed, it would at ouce nullify or set aside all the laws of the territory respecting the place where causes cognizable by the justice of the peace should be tried. This was not the intention of Congress. It was only, intended to duplicate justices of the peace in other persons, and thereby give another class of citizens than those from which it was supposed justices were usually chosen representation in these offices, upon equal terms, and not witb such additional powers and privileges as are claimed by tbe defendant, and not for the purpose of annulling tbe laws of tbe territory, but only to provide further means for their execution. We are therefore of the opinion that the defendant is proceeding erroneously, without jurisdiction over the relators.

The remedy by writ of prohibition, provided for by our statute (Laws 1884, pages 326, 327) is the common law writ recognized and regulated by statute. Section 983 of the statute above cited only authorizes the court to issue the writ “where there is not a plain, speedy and adequate remedy in the ordinary course of law.” This is the rule at common law. High, Extr. Rem., sec. 765. In the cases sought to be arrested by the writ asked for in these causes, the subject-matters are those over which justices and commissioners have jurisdiction. The commissioner is only proceeding without jurisdiction over the persons. This objection has been made by the relators, and the commissioner has erroneously decided against them. The statute has provided a remedy in the causes by appeal or certiorari, and this is the ordinary course of law. Where the legislature has provided a remedy for correcting an error, in a cause by a proceeding in the cause itself, it must be taken to be the plain, speedy, and ¡adequate remedy in due course of law, which takes from the party the right to resort to an extraordinary remedy which is not in due course of law: High, Extr. Rem., secs. 767, 770-772; Ex parte Peterson, 33 Ala., 74; Ex parte Braudlacht, 2 Hill, 367; State v. Judge of County Court, 11 Wis., 50; Ex parte Gordon, 2 Hill, 363; People v. Marine Court, 36 Barb., 341; Duchenau v. House, 4 Utah, 369; Duchenau v. Ireland, ante p. 108.

For this reason the petitions are denied. We entertain no doubt that the commissioner is acting in good faith, as there has been diversity of opinion in the profession and among commissioners ás to the construction of the statute under consideration; and upon calling his attention to this opinion he will undoubtedly desist from any further action hot in conformity to it.

Zake, O. J., concurred.