(dissenting).
On reconsidering the legal questions presented in this case, I dissent from the majority opinion as now written for the following reasons:
This is an original proceeding upon relators’ application for a writ of prohibition, challenging the jurisdiction of the respondent court in granting its order for a new trial.
This court issued its alternative writ of prohibition. Return therein was made and oral arguments heard and briefs submitted. The facts and circumstances presented, in my opinion, conclusively show that the district court in granting its order for a new trial acted without and in excess of its jurisdiction.
The facts, circumstances and the law applicable thereto disclose the right of relators to full legal relief under their application for writ of prohibition. R.C.M. 1947, section 93-9201, provides: “The writ of prohibition is the counterpart of the writ of mandate. It arrests the proceedings of any tribunal, corporation, board, or person, whether exercising functions judicial or ministerial, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board, or person.” (Emphasis supplied.)
This court under our Constitution, Art. VIII, section 3 and our statutes enacted by our legislature, R.C.M. 1947, sections 93-9201 — 93-9204, may grant the authorized and legal relief herein applied for. That prohibition is the only legal writ that *604may be issued in this particular kind of a case under the facts, herein cannot be doubted. It is the office of the writ of prohibition in such a case, where the district court as here acted without or in excess of jurisdiction, to give complete relief, See State ex rel. Examining & Trial Board v. Jackson, 58 Mont. 90, 190 Pac. 295; State ex rel. King v. District Court, 107 Mont. 476, 86 Pac. (2d) 755; State ex rel. Stewart v. District Court, 103 Mont. 487, 63 Pac. (2d) 141. In any event,, one of the constitutional and statutory writs or appeal was. available here.
The laws of this state are found only in our Constitution and statutes, and they are the only source of our authority and jurisdiction in such proceedings. The only original writs or applications to this court for relief must, in law, come under those prescribed by our statutes and our Constitution and the common law where not superseded by our Constitution and not otherwise.
It should be noted that while other Code provisions, like R.C.M. 1947, section 93-9002, provide that the existence of a remedy by appeal will defeat the right to relief by writ of review, there is no such provision found in the section applicable to the writ of prohibition and it may be issued in all such cases where there is not a plain, speedy and adequate remedy in the ordinary course of law. But even the remedy by appeal does not defeat the right to relief by prohibition in such cases. Compare State ex rel. Marshall v. District Court, 50 Mont. 289, 146 Pac. 743; State ex rel. Examining & Trial Board v. Jackson, supra; State ex rel. King v. District Court, supra.
We are authorized by law to issue writs of prohibition in our discretion for whatever purpose they are suitable, without limitation or qualification, where they go to courts on inquiry into questions of jurisdiction. See State ex rel. Whiteside v. First Judicial District Court, 24 Mont. 539, 562, 63 Pac. 395.
However, the court-called wrrit of supervisory control, as used in the majority opinion herein, is unauthorized by our Constitution, our statutes, and is unknown to the common law *605and the law of this state. It is simply this court’s created device and fiction.
In the Whiteside case, supra, as I read it, the only question there before the court for determination was whether this court in that case was correct in issuing its writ of certiorari to review the record of the lower court and to annul the district court’s order. This court therein simply held that this court had no statutory power to review the order under such writ for the reason that the district court had acted within its appropriate jurisdiction, and therefore vacated the writ and dismissed the proceedings. That was all that was before the court and was all that was necessary and pertinent to that decision. The court did however proceed to review the different statutory writs in a lengthy dissertation, commenting in general terms upon and proposing a novation, to be called a writ of supervisory control, which might be used in certain cases. However, all such comment was not relevant to, and did not pertain to, nor was it germane to the question before the court and its decision, and therefore such comment was entirely obiter dictum. If such court-invented writ of supervisory control can be issued in the instant case, upon the application of this relator for a writ of prohibition wherein relator relied upon the authorities of former opinions of this court applicable to writs of prohibition and in no wise in his petition relying upon precedents where the writ of supervisory control was used, then I see no reason why such writ of supervisory control should not lie to correct each and every mistake and error of district courts within or without and in excess of jurisdiction and supplant the use of any of the statutory writs and the statutory appeals. Thus this practice will continue to circumvent the required statutory procedures, rendering them useless and this court will be constantly employed in the hearing and determination of such unauthorized applications. Compare State ex rel. Shores v. District Court, 27 Mont. 349, 354, 71 Pac. 159.
This court, from the obiter dictum pronounced in the White-side Case, supra, has on several occasions followed that dictum *606as precedent. Such precedent culminates in the case of State ex rel. Sinko v. District Court, 64 Mont. 181, 208 Pac. 952. In that case the facts and circumstances are similar to those in the King Case, supra. The legal question was the same; in both cases the presiding judge had made and entered an order granting a new trial after the time allowed by law. However, in the Sinko Case, a so-called writ of supervisory control was issued and in the King Case a statutory writ of prohibition was granted. In both cases the respective writs were used to grant full relief. The proceedings in the King Case were founded on constitutional and statutory authority, while in the Sinko Case there was no law upon which the proceeding was based, only the inclination of the men, then members of the court. In other words court-made law.
This so-called writ of supervisory control is an easy way to handle such matters. It is unfettered by any control of law, only the conscience of the court is the guide. It has often been stated that ours is a government of law not of men. What is the “law of the land” in Montana! As I understand the only law of this state is contained in our Constitution, our statutes and the Constitution and laws of the United States of America. See R.C.M. 1947, sections 12-101, 12-102, 93-1001-9. Nowhere in our law do I find the will of the supreme power of the state, the people, expressing one word about a writ of supervisory control. There is just no such proceeding authorized under law.
As I view the matter on the one hand, the court takes the law as given to it by the people through their constitutions and statutory laws, all of which are plainly written so that every attorney may know the law and the authorized legal processes which may be used in aid of and to protect the civil rights of his client; on the other hand, we have only the fiction of a court-made rule without any foundation of written law to support it.
On the question of stare decisis, I take my stand with the Supreme Court of the United States and Mr. Justice Brandeis, as expressed in the opinion of that court in Erie Railroad Co. *607v. Tompkins, 304 U. S. 64, 58 S. Ct. 817, 823, 82 L. Ed. 1188, 114 A.L.R. 1487, wherein the question was whether the oft-challenged, court-made law, rule and doctrine of the Swift v. Tyson Case, 16 Pet. 1, 10 L. Ed. 865, decided in 1842, should be disapproved after almost a century. Justice Brandeis quoted Mr. Justice Holmes in Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U.S. 518, 533, 48 S. Ct. 404, 72 L. Ed. 681, 57 A.L.R. 426: ‘ ‘ ‘ * * * But law in the sense in which courts speak of it today does not exist without some definite authority behind it. ’ * * * Thus the doctrine of Swift v. Tyson is, as Mr. Justice Holmes said, ‘an unconstitutional assumption of powers by the Courts of the United States which no lapse of time or respectable array of opinion should make us hesitate to correct’.” (Emphasis supplied.)
Justice Brandies also quoted Mr. Justice Field in an early case, Baltimore & O. R. v. Baugh, 149 U.S. 368, 13 S. Ct. 914, 37 L. Ed. 772, in part as follows: “And I confess that, moved and governed by the authority of the great names of those judges, I have, myself, in many instances, unhesitatingly and confidently, but I think now erroneously, repeated the same doctrine. But, notwithstanding the great names which may be cited in favor of the doctrine, and notwithstanding the frequency with which the doctrine has been reiterated, there stands, as a perpetual protest against its repetition, the constitution of the United States * * *” (Emphasis supplied.)
All of the foregoing is applicable here in the instant case. Our Constitution and statutes are a perpetual protest against the repetition of the issuing of the unauthorized so-called writ of supervisory control, under the fiction or invention, that this court has such power and authority to issue same. Section 2 of Article VIII, Montana Constitution, provides as far as pertinent here, “The supreme court * # * shall have '* * * a general supervisory control over all inferior courts, under such regulations amd limitations as ■may be prescribed by law.” (Emphasis supplied.) I am unable to find any other constitutional provision relative to this court’s supervisory power over inferior *608courts, except the constitutional and statutory writs and processes authorized by law. There is no constitutional provision authorizing this court to issue, nor is there any mention of a so-called writ of supervisory control in our Constitution. Nor do I find any legislative enactment or statute dealing with, or mentioning such a process. There simply isn’t any such action or proceeding known to our law.
Of course, the above mentioned clause of section 2 of Article VIII, is not self-executing. Legislation must be had to enable this court to lawfully and effectively exercise such jurisdiction and authority. When the legislature has failed or refused to enact a law or laws of regulations and limitations at all, the authority therein simply lies dormant. It is an effective means of prohibiting to the court such authority. The provisions of the Constitution are prohibitory and mandatory. Article III, section 29. It must be conceded that there is no power which can coerce the legislature into enacting a law or laws prescribing the regulations and limitations necessary to confer such authority and jurisdiction on this court. In the absence of legislation thereon, making the prospective grant of authority effective, it is of no use whatever. Therefore, being unauthorized by law, when this court assumes to exercise such authority in authorizing or issuing the so-called writ of supervisory control, such action is unlawful. If this lack of legislation is a hindrance on the authority of the court, or on litigation, and a remedy is needed, the people through their legislature may alone provide such remedial legislation. This court may not so legislate. Compare State ex rel. Crumb v. City of Helena, 34 Mont. 67, 85 Pac. 744.
One has only to examine the decisions of this court wherein the court has granted or refused to grant the so-called writ of supervisory control to observe the utter confusion and uncertainty connected therewith. The reason for such a condition is, of course, the fact that there is no law, either substantive or adjective, upon which any lawful proceeding must be based. The result is then, when such a process is issued, it is without *609restraint of and not in accordance with law and is an arbitrary-assumption of power and authority. From this condition it is no wonder that many practicing- lawyers hesitate to advise a client in regard to the use of a writ, whether a lawful statutory writ or one not authorized by law, and they rightly echo the jibe about the “glorious uncertainties of the law.”
It may be said that the policy of stare decisis is a wise policy in those cases where the law has prescribed the remedy and the process and these have been interpreted, applied and established over the years by many decisions. However, it is an entirely different matter where a mere fiction of the court, or court-made law, has been used to supplant the Constitution and the statutes. In such a case, like we have here, there should be no hesitation by the court to overrule so-called precedent which has been established on fiction and square future litigants with the law. As was said in Baker v. Lorillard, 4 N.Y. 257, 261, “It [the court] may, and undoubtedly ought, when satisfied that either itself or its predecessor, has fallen into a mistake, to overrule its own error. I go further, and hold it to be the duty of every judge and every court to examine its own decisions without fear, and to revise them without reluctance.”
Every court has at times been in error in applying our law to facts, using prior decisions to fortify the opinion, each department of government has so erred, but this court can extricate itself from such error when a subsequent proper case is presented. Where, as here, there is no law for the precedent, it becomes the duty in my opinion to proclaim to future litigants that such unlawful proceeding shall not be utilized, and that this court will abide in the future with “the law of the land.” For the reasons stated I would treat all that is said in the White-side Case on the use of the so-called writ of supervisory control as obiter dictum, and I would overrule the Sinko ease, supra, and all other decisions of this court wherein the unauthorized so-called writ of supervisory control was authorized by this court. In the instant case, the writ of prohibition as applied for by relators and granted by this court, being statutory and con*610stitutional, should be affirmed and full relief granted relator thereunder. Otherwise the stinging rebuke of the stanza of the Poet William Cowper’s Tirocinium, 11-521-256, would be applicable:
“The slaves of custom and established mode,
With packhorse constancy we keep the road,
Crooked or straight, through quags and thorny dells,
True to the jingling of our leader’s bells.
So follow foolish precedents, and wink
With both our eyes, is easier than to think.”