Prohibition

Forbidden to do; inhibition; interdiction. Talbott v. Casualty Co., 74 Md. 545, 22 Atl. 395, 13 L. R. A. 584. In Practice. The name of a writ issued by a superior court, directed to the judge and parties to a suit in an inferior court, commanding them to cease from the prosecution of the same, upon a suggestion that the cause originally, or some collateral matter arising therein, does not belong to that jurisdiction, but to the cognizance of some other court. 3 Bla. Com. 112; Viner, Abr.; 2 H. Bla. 533; Re Fassett, 142 U. S. 479, 12 Sup. Ct. 295, 35 L. Ed. 1087; Alexander v. which has taken jurisdiction of a suit against a foreign state; 17 Q. B. 196, 215. The writ of prohibition may also be issued when, having jurisdiction, the court has attempted to proceed by rules differing from those which ought to be observed; Bull. N. P. 219; or when by the exercise of its jurisdiction, the inferior court would defeat a legal right; 2 Chitty, Pr. 355; or to prevent a judge from granting a new trial after expiration of the trial term; State v. Walls, 113 Mo. 42, 20 S. W. SS3. A writ of prohibition is a civil remedy given in a civil action, even when instituted to arrest a criminal prosecution; Farnsworth v. Montana, 129 U. S. 101, 9 Sup. Ct. 253, 32 L. Ed. 616; and only lies in case of the unlawful exercise of judicial functions; Fleming v. Com’rs, 31 W. Va. 617, 8 S. E. 267; State v. Gary, 33 Wis. 93; People v. Marine Court, 36 Barb. (N. Y.) 341. The wilt of prohibition issues only in cases of extreme necessity, and before it can be granted, it must appear that the party aggrieved has applied in vain for redress; and it is never allowed except in cases of usurpation or abuse of power, and not then unless other existing remedies are inadequate to afford relief, or no other remedy exists; Ensign Mfg. Co. v. Carroll, 30 W. Va. 532, 4 8. E. 782. When a writ of error or appeal furnishes a complete and effective remedy, a writ of prohibition will not be issued; Mastin v. Sloan, 98 Mo. 252, 11 S. W. 558; Turner v. Forsyth, 78 Ga. 683, 3 S. E. 649; Nelms v. Vaughan, 84 Va. 690, 5 S. E. 704. Prohibition will not issue after judgment and sentence unless want of jurisdiction appears on the face of the proceedings, but before judgment the supreme court can examine not simply the process and pleadings of record, but also the facts and evidence upon which action was taken; Re Cooper, 143 U. S. 472, 513, 12 Sup. Ct 453, 36 L. Ed. 232. A writ of prohibition will not be issued to restrain a district court from taking jurisdiction of a petition of the owner of a barge for the benefit of the limited liability act; Re Engles, 146 U. S. 357, 13 Sup. Ct. 281, 36 L. Ed. 1004. When a party aggrieved by a judgment has an appeal to the supreme court which becomes inefficacious through his neglect, a writ of prohibition will not issue to prevent the enforcement of the judgment; Re Cooper, 143 U. S. 472, 513, 12 Sup. Ct. 453, 36 L. Ed. 232. If it appear that the thing sought to be prohibited has been done, a writ of error will be dismissed; Jones v. Montague, 194 U. S. 147, 24 Sup. Ct. 611, 48 L. Ed. 913. “Where it appears that the court whose action is sought to be prohibited has clearly no jurisdiction of the cause originally, or of the outset and has no other remedy is entitled to a writ of prohibition as a matter of right. But where there is another legal remedy by appeal or otherwise, or where the question of the jurisdiction of the court is doubtful, or depends on facts which are not made matter of record, or where the application is made by a stranger, the granting or refusal of the writ is discretionary. Nor is the granting of the writ obligatory where the case lias gone to sentence, and the want of jurisdiction does not appear upon the face of the proceedings.” Re Rice, 155 U. S. 402, 15 Sup. Ct. 149, 39 L. Ed. 198, followed in The Conqueror, 166 U. S. 110, 17 Sup. Ct. 510, 41 L. Ed. 937; Alexander v. Crollott, 199 U. S. 5S0, 26 Sup. Ct. 161, 50 L. Ed. 317. The term prohibition is also applied to the interdiction of making and of selling or giving away, intoxicating liquors, either absolutely or for other than medicinal, scientific, and sacramental purposes. See Liquob Laws.

page 832. Case of Kidd v. Pearson, argued before the Supreme Court April 4, and decided October 22, 1888. The code of Iowa (ch. 0, tit. 11), as amended in 1884 (Laws, ch. 143), provides: That no person shall manufacture or sell intoxicating liquors, except for mechanical, medicinal, culinary, and sacramental purposes; keeping liquors with intent to sell them within the State contrary to law is prohibited, and liquor so kept *'is a nuisance," and shall be forfeited (sees. 1523, 1526), " Nothing in this chapter shall be construed to forbid the sale by the importer thereof of foreign intoxicating liquor imported under the authority of the laws of the United States regarding the importation of such liquors and in accordance with such laws: Provided, That said liquor at the time of said sale by said importer remains in the original casks or packages in which it was by him imported, and in quantities not less than the quantities in which the laws of the United States require such liquors to be imported, and is sold by him in said original casks or packages and in said quantities only.." (Sec. 15-24.) Permission to manufacture or buy and sell for "mechanical, medicinal, culinary, or sacramental purposes " is to be obtions prescribed as to moral character, the wants of the Ipcalitj', etc. December 24, 1885, 1. E. Pearson and S. J. Loughran filed a petition in equity against J. S. Kidd, praying that a certain distillery used by him for the unlawful manufacture and sale of intoxicating liquors be abated as a nuisance, and that he be perpetually enjoined from manufacturing such liquors therein. The concluding averment was that Kidd manufactures and keeps for sale, and sells within the State, intoxicating liquors to be taken out of the State for use as a beverage, and for other than mechanical, medical, culinary, or sacramental purposes, contrary to the statute. Kidd, in his answer, pleaded that he had at all times complied with the requirements of the law. Upon the trial it was proven that all the liquors he manufactured were for exportation and wore sold outside of Iowa. 4. decree was rendered against him, ordering that his distillery be abated as a nuisance, etc., as prayed for. This decree being affirmed by the supreme court of the State, the case was carried to the Supreme Court of the United States, by which the constitutionality of the law and proceedings was upheld. Mr. Justice Lamar, delivering the unanimous opinion of the court, said in substance: That the State of Iowa could abate the distillery without depriving the owner of his property " without due process of law," within the meaning of the Fourteenth Amendment to the Constitution, was settled by the opinion in the case of Mugler v. Kansas, The only question to be decided is then as to whether the legislation of Iowa undertakes to " regulate commerce." That i Dower, conferred upon Congress, is absolute and complete in itself, with no limitation other than prescribed in the Constitution; is to a certain extent exclusively vested in Congress, so far free from State action; is co-extensivfl with the subject on which it acts, and cannot stop at the external boundary of a State, but must enter into the interior of every State whenever required by the interests of commerce with foreign nations, or among the States. This power, however, does not comprehend the purely internal domestic commerce of a State which is carried on between man and man within a State or between different parts of the same State. Whenever power reserved ■ to one of the States is so exercised as to conflict with the free course of a power vested in Congress, the law of the State must yield to the supremacy of the Federal authority, though the law may have been enacted In tiie exercise of a power indisputably reserved to the States. It is a mistake to say, as in this case, that the act of transporting alcohol from the State in the course of lawful commerce with other States not being a crime, to perform that act was not a criminal intent, whether formed before or after the manufacture. It is not the ciiminality of the intent to export that is in question, but the innocence or criminality, under the statute, of the manufacture, in the absence of the specific exceptions to the prohibition, the actual and controlling and bona. fide presence of at least one of which excep- The construction contended for by Kidd would extend the words of the grant to Congress beyond their obvious import... ' " Manufacture " is transformation—fashioning raw materials into a change of form for use. The functions of " commerce " are different. The buying and selling and the transportation incidental thereto constitute commerce; and the regulation of commerce in the constitutional sense embraces the regulation at least of such transportation. If it be held that the term " commerce " includes the regulation of all such manufactures as are intended to be the subject of commercial transactions in the future, it is impossible to deny that it would also include all productive industries that contemplate the same thing. The result would be that Congress would be invested, to the exclusion of the States, with the power to regulate, not only manufactures, but also agriculture, horticulture, stock-raising, domestic fisheries, mining, — every branch of industry; for there is not one of these that does not contemplate, more or less clearly, an iuter-State or foreign market. The power being vested in Congress and denied to.the States, it would follow that the duty would devolve on Congress to regulate all those delicate, multiform, and vital interests, — interests which are and must be local in all the details of their successful management. We find in the statute no provision the piu'pose of which is to exert the jurisdiction of the State over persons or property or transactions within the limits of other States; or to act iipon intoxicating liquors as exports, or while in process of exportation or importation. Its avowed object is to prevent, not the carrying of liquors out of the State, but their manufacture, except for specified purposes, within the State. Because the products of a domestic manufacture may ultimately become the subjects of inter-State commerce, it does not follow that State legislation respecting such manufacture is an attempted exercise of the power to regulate commerce exclusively conferred upon Congress. The right of a State wholly to prohibit the manufacture of intoxicating liquors is not to be overthrown omitting to except from its operation liquors manu factured for export, does not interfere with the power vested in Congress. In License Tax Cases, 5 Wall. 471 (1866), it was said: " No interference by Congress with the business of citizens transacted within a State is warranted by the Constitution, except such as ifi strictly incidental to the exercise of powers clearly granted to the legislature [Congress]. The power to authorize a business within a State is plainly repugnant to the exclusive power uf the State over the same subject." The manufacture of intoxicating liquors in a State is none the less a business within that State because the manufacturer intends, at his convenience, to export the liquors to other States. It has already been decided that the fact that an article was manufactured for export to another State does not of itself make it an article of inter-State commerce, and that the intent'of the manufacturer does not determine the time when the article or product passes from the control of the State and belongs to commerce. In the case of Coe v. Errdl, 316 U. S. 517, ~ 5S4 (1886), logs, which had been cut in New Hampshire and hauled to Errol on the Androscoggin river, in -the same State, to be floated down that river to Lewiston, Maine, while being held at Errol for a convenient opportunity for the transportation were assessed for local and State taxes. This court held that the logs were liable for taxes like other property in New Hampshire; that "goods do not cease to be part of the general mass of property in a State, subject, as such, to its jurisdiction, and to taxation in the usual way, until they have been shipped or entered with a common carrier for transportation to another State, or have been started upon such transportation in a continuous route or journey." The police power of a State is as broad and p^enaiy as its taxing power; and property within a State is subject to the operations of the, former as long as it is within the regulating restrictions of the latter. (The ease is reported 'in 128 U. S. 1, 15-36. Fuller, C. J., not being a member of the Court when it was argued, took no part in the decision. With Coe v. Errol

A prerogative writ issuing perior court, or Chancery, to restrain or particularly an ecclesiastical court,

The name of a writ issuing to forbid any court to proceed in any cause there depending, on the suggestion that the cognizance thereof helongs not to such court; a writ which commands the person or tribunal to whom it is directed not to do something which, by the suggestion of the relator, the court is informed he is about to do. United States V. Hoffman, 4 Wall. 158. It is a remedy provided by the common law against the encroachment of jurisdiction. This writ is of English origin, being one of the great common-law prerogative writs long in use. It is known and recognized as a judicial remedy in most of the states, yet is but little regulated, 80 far as we are aware, by statute, the English precedents and practice being very generally followed in this country. In early times, in England, the chief use of prohibitions is said to have been to restrain the ecclesiastical courts from interfering in matters which were properly subject to the jurisdiction of the courts of common law; and the clergy complained earnestly that the commonlaw courts extended their interference with the spiritual courts by means of their prohibitions too far. (See Case of Prohibitions, 12 Coke, 59.) Power to issue it was vested not only in the king's bench, but also in the courts of chancery, exchequer, and common pleas; and it might issue to any inferior court of common law, or to the courts of the counties palatine, to the county courts or courts baron, or to the courts christian or ecclesiastical, the university courts, the court of chivalry or the court of admiralty, when they were about to act la any matter not within their jurisdiction, or were to transgress the bounds preerf prohibition have been chiefly the following: To commissioners, justices, and inferior courts generally, whether civil or criminal, for assuming unwarranted jurisdiction. To courts of appeal, not excepting even the judicial committee of the privy council. (Darby v. Cosens, 1 Durnf. §• E. 552; Exp. Smyth, 3 Ad. ^ E. 719.) Prohibition differs from injunction, in that prohibition is directed to a court as well as to the opposite party; whereas an injunction is directed to the party alone. By the English practice, as prescribed by Stat. 1 Wm. IV. ch. 21, an application for a writ of prohibition is made by motion, supported by affidavits. But if the point is too nice and doubtful to be decided upon motion, then the party applying for the prohibition is directed to declare in prohibition, — that is, to deliver a concise statement of the proceedings in respect of which he applies for a prohibition, and praying that a writ of prohibition may issue. The " declaration in prohibition " was formerly based on the fiction that the party against whom the declaration was filed had proceeded in the suit, notwithstanding the writ of prohibition. 8 Bl. Com. 113, 114; 3 Steph. Com. 635-638. No prohibition will issue after sentence, unless the want of jurisdiction below appears on the face of the proceedings. Buggin V. Bennett, 4 Burr. 2035. Under the judicature act, 1873, § 24, subd. 5, no cause or proceeding at any time pending in the high court of justice, or before the coui't of appeal, shall be restrained by prohibition or injunction. PROJECT; PROJET. These words, English and French, are often applied to the draught, plan, or scheme of a law or treaty, considered as put forward for consideration and adoption.

practice, is the name of a writ issued by a superior court, directed to the judge and parties of a suit in an inferior court, commanding them to cease from the prosecution of the same, upon a suggestion that the cause originally, or some collateral matter arising therein, does not belong to that jurisdiction, but to the cognizance of some other court. 3 Bl. Com. 112; Com. Dig. h. t.; Bac. Ab. h. t.; Saund. Index, h. t.; Vin. Ab. h. t.; 2 Sell. Pr. 308; Ayliff’s Parerg. 434; 2 Hen. Bl. 533.