State ex rel. Macklin v. Rombauer

Thomas, J.

— The question now involved in this case has received our consideration, and we adopt the opinion of Barclay, J., as the opinion of this court sitting in banc, and order judgment to be entered accordingly.

*621 We will add that our attention has been called to the statement made by Lloyd in his work on prohibition, page 5, as follows: “ A writ of prohibition must be moved for in open court, and a judge at chambers has no power to grant it either in term or vacation.” It is evident Mr. Lloyd here refers to the practice in the courts of common law, for on page 4 of the same work he uses this language: ‘ ‘ The court of chancery may also grant a prohibition in all cases when the common-law courts are not sitting, for the court of chancery has power to grant a prohibition in vacation as well as in term time.” And again on page 58 he says, “but the application to the court of chancery in vacation need not be made in open court, but the cursitor will, on a proper affidavit, grant a writ returnable into the queen’s bench or common pleas.”

By virtue of the provision in our constitution vesting all judicial power “as to matters of law and equity” in the courts of the state in the exercise of its original jurisdiction in prohibition, in the absence of any statute on the subject, this court may “shape its proceedings in such form as will preserve the effectiveness of the ancient remedy administered by the superior courts, either of law or chancery, in the common-law system of jurisprudence.

The judges of this court, having the combined powers of a chancellor and common-law judge, have authority to do what either might have done under the old system, in respect of this writ.

Sherwood, C. J., and Barclay, Gantt and Macharlaste, JJ., concur; Black and Brace, JJ., dissent.