This is a petition for a writ of prohibition commanding the Controller to refrain and desist from drawing warrants upon the treasury in payment of any claims arising under the Act of April 23rd, 1880, entitled “An Act to promote drainage,” and the Treasurer from paying out any money upon such warrants.
Section 4 of article vi of the Constitution of the State provides that the Supreme Court shall have power “to issue writs of mandamus, certiorari, prohibition, and habeas corpus.” The same language was employed in the former Constitution.
In Maurer v. Mitchell, 53 Cal. 291, it was said: “ We are all of opinion that the writ mentioned in the Constitution is the writ of prohibition as known to the common law.” And in Spring Valley Water Works v. The City and County of San Francisco, 52 Cal. 111, it was said : “ At the common law, the writ of prohibition was issued on the suggestion that the cause originally, or some collateral matter arising therein, did not belong to the inferior jurisdiction, but to the cognizance of some other Court. It was an original remedial writ provided as a remedy for the encroachment of jurisdiction. Its office was to restrain subordinate Courts and inferior judicial tribunals from exceeding their jurisdiction.”
These two cases are decisive of the present application.
At the time of the decision in Maurer v. Mitchell, § 1102 of the Code of Civil Procedure read: “ The writ of prohibition is the counterpart of the writ of mandate. It arrests the proceedings of any tribunal, corporation, board, or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board, or person.” It was decided that this language did not require of the Court to hold that the office of the writ had been extended. Such construction of the statute, however, did not make what was said in respect to the meaning of the Constitution mere dictum. It only furnished *554another and separate reason why the writ should be denied in that case. It might as well be urged that what was said in Maurer v. Mitchell, with reference to the meaning of the section of the Code, was unnecessary to the conclusion reached by the Court; and by such reasoning, a case which distinctly determines two questions would become an authoritative determination of neither. The new Constitution was framed in view of the construction of the language used in the former Constitution, unanimously concurred in by the members of the highest tribunal of the State. Yet the framers of the present Constitution repeated the words employed in the former. We are forced to the conclusion that they used these words in the sense which had been attributed to them by the Supreme Court.
It follows that the Legislature had no power to enact the statute which purports to amend § 1102 of the Code of Civil Procedure, and to provide that the writ shall arrest the proceedings (in excess of jurisdiction) of any tribunal, corporation, board, or person, “ whether exercising functions judicial or ministerial,” in so far as it attempts to extend the office of the writ.
Writ denied and proceedings dismissed.