(dissenting). The authorities are practically unanimous in holding that the high prerogative writ and extraordinary remedy of prohibition “is to be used with, great caution and forbearance, for the furtherance of justice and to secure order and regularity in judicial proceedings, and should be issued only in cases of extreme necessity.” 22 R. C. L., p. 5, § 4, and cases there cited.
There is no necessity, as we see it, for the issuance of the writ in this case; and besides the issuance at this juncture is wholly premature. The circuit court has had no opportunity to determine whether it had jurisdiction of the subject-matter set forth in the complaint of McDonald et al. Every court has the power to determine in limine whether it has the jurisdiction over the subject-matter of the -controversies brought before it. To deprive the circuit court in advance of the opportunity and right to decide whether it will entertain jurisdiction is tantamount to an assumption of original jurisdiction by this court, which is contrary to art. 7, § 4, of the Constitution.
It has been the doctrine of this court since 1842 that no prohibition lies from this court to an inferior court until a suggestion of its want of jurisdiction, properly verified, has first been presented to the inferior court. There has been no deviation from this rule until the present case. Ex parte Williams, 4 Ark. 537; Ex parte Blackburn, 5 Ark. 21; Ex parte Meechan, 12 Ark. 70; Ex parte Little Rock, 26 Ark. 52; State ex rel. Butler v. Williams, 48 Ark. 227; Reese v. Steel, 73 Ark. 66.
In Ex parte Williams, supra, this court said: “The rule was, at common law, that no prohibition lay to an inferior court, in a cause arising out of their jurisdiction, until that matter had been pleaded in the inferior court and the plea refused. It must appear, in the suggestion (to the Supreme Court) that the plea was verified and tendered in person during the sitting of the inferior court.” The rule is announced in the same language in all the cases.
This doctrine, we believe, is in accord with the great weight of authority. In an exhaustive note to State v. Superior Court, 111 Am. St. Rep. 925-965, Judge Freeman says: “Whether any special rule of court has been promulgated on this subject or not, undoubtedly, the practice generally prevailing in the United States is not to take any action until it appears that the subordinate tribunal has in some appropriate method had its attention called to its supposed absence or excess of jurisdiction, and has, nevertheless, indicated its purpose to proceed, or it in some other manner sufficiently appears that an application to that court must prove unavailing. ’ ’
Among the numerous cases cited by the eminent author and annotator in support of the text are cases from our own court. Further on in the note to the case the exception recognized in the majority opinion is referred to, and some cases from other courts are cited to support it, but none from Arkansas.
Of course, the opinion of even as learned a law writer as Judge Freeman as to the effect of our former decisions is not binding on this court. But certainly his opinion is entitled to the utmost respect. If he is correct, and we believe he is, in classifying our cases in line with those holding that the writ of prohibition will not lie unless the inferior court has first had its attention directed to the matter, and if indeed such has been the established rule of practice in this State for three-fourths of a century, and if it is in accord with the practice generally prevailing in the United States, then why change the rule, or engraft upon it an exception which virtually nullifies it? Stare decisis should preclude .any departure or innovation here. “Without ‘stare decisis,’ it would be difficult, if not impossible, to build up and preserve any valuable system of jurisprudence.” Ex parte Hunt, 10 Ark. 284.
“Controversies should not be opened every time a new judge takes his seat.” Coates v. State, 50 Ark. 333.
“It is better to let matters of practice remain settled than to disturb them. ’ ’ Miller v. Fraley, 21 Ark. 38.
“Public policy requires that decisions of courts of last resort which have been followed and acted upon shall be adhered to, unless great injury and injustice would result.” Rhea v. State, 104 Ark. 162.
The case of Russell v. Jacoway, 33 Ark. 191, is not in conflict with the other decisions of this court. In that case the issue we have here was not raised. There was no suggestion in the Supreme Court to the effect that no objection had first been made in the inferior court to the exercise of jurisdiction and that the circuit court had not been given an opportunity to determine that question. On the contrary, the opinion in Russell v. Jacoway, supra, shows that the Supreme Court disposes of the case on the theory that the plea objecting to the jurisdiction of the inferior court had been first properly presented to that court and refused. The court said: “For the circuit court to assume to determine in the first instance,” etc. Again, “But by the circuit court’s assumption of jurisdiction in the case all further proceedings of the county court have been prevented,” etc.
But the majority of the court, while recognizing the rule as above announced by the former decisions of this court, nevertheless hold that there is an exception to the rule where the circuit judge, before whom the cause must be heard when the court subsequently convenes, has in vacation overruled an objection to his jurisdiction to proceed in the matter then pending before him and which must be heard by the court later, and, where as in this ease, in this formal response to the application for writ of prohibition he still maintains that the circuit court has jurisditcion. This holding is not correct, for the reason that the circuit judge in vacation and the circuit court are entirely different functionaries. The orders when made by the circuit judge in vacation are not final, but subject to review and change by the circuit court itself when it subsequently convenes, whereas the orders of the circuit court, when final, are sub jet to review and correction by the Supreme Court.
Application was made to the circuit judge in vacation for .writ of certiorari to bring up and to quash the assessment of benefits made by the commissioners and to restrain them from further proceeding with the improvement. Conceiving that he had jurisdiction to issue the writ of certiorari reviewable by the circuit court and, in the meantime, to issue a restraining order, the circuit judge proceeded to exercise such jurisdiction.- He issued the writ of certiorari in April returnable to the ensuing. September term of the court and in the meantime restrained further proceedings by the commissioners of the district. Now, who can say that the circuit court when it convened at the September term would not, upon a plea to its jurisdiction, after a consideration of such plea, have held that it had no jurisdiction of the matters presented in the application for certiorari? Who can say that the circuit court, after a careful consideration, would not have quashed the writ issued by the judge in vacation? Who can say that the circuit court would not have refused to quash the assessments of benefits made by the commissioners and that the court would have interfered in any manner with the further progress of the work of the improvement district? What prophetic ken has this court of what would be the decision of the circuit court of Craighead County several months in advance of the time when that decision was to be rendered? Who has the omniscience to foretell that the circuit court, although presided over by the same judge, would not entertain different views and decide that it had no jurisdiction?
To show the inaccuracy of the position of the majority and the unsoundness of its logic, let us suppose that before the September term of the court convenes, the Hon. R. H. Dudley, the respondent herein, and the judge who issued the writ of certiorari and the temporary restraining order, dies, or that he is unavoidably detained by illness or other canses, all of which contingencies are contemplated by art. 7, § 21, of our Constitution. Suppose that under this constitutional provision a different judge has been elected to preside over the court and that such judge entertains entirely different views from his predecessor and that his views are in harmony with the appellant’s contention herein, could it then be said that the circuit court had had an opportunity to decide the issue of its jurisdiction and had decided that issue adversely to appellant’s contention? Could it then be said that there was any excuse, much less necessity, for the writ of prohibition? Could it then be decided by this court that the lower court had determined that it had jurisdiction when in fact no opportunity had been given that court to pass upon the question, and when, if the matter had been presented to it, it,would itself have decided that it had no jurisdiction?
It occurs to us that the only answer to the above questions demonstrates the fallacy of engrafting the exception, now proposed and adopted by the majority, upon the rule herétofore announced and so long adhered to by this court. A rule of practice that would not stand the test and apply to any and all cases that might arise under art. 7, § 21, of our Constitution, is unsound (besides being unconstitutional), and should not be approved by this court.
The rule announced in Ex parte Williams, supra, is a sound one. It preserves the proper consideration deference for the opinions and judgment of the inferior tribunal.
Under the so-called exception no allowance is made for a possible, or even probable, change of viewpoint upon the part of the judge himself who reviews in term time his own vacation orders, and no consideration is given to the eventualities of art. 7, § 21, of the Constitution. This is manifestly unjust and unfair to the inferior tribunal which should at least be given the opportunity to first decide upon the question of whether it has jurisdiction to proceed. We are convinced that there is no exception to the rule in this State and that the majority opinion, therefore, results in overruling the cases heretofore mentioned; and that the issuance of the writ, under the circumstances here detailed, is an exercise of original jurisdiction by this court not contemplated by our Constitution.
For the above reasons Mr. Justice Hart and I dissent from that part of the opinion which holds that the writ of prohibition will lie.