(dissenting). Assuming, without expressing any opinion upon the subject, that the decision of the Rent Commission was properly superseded, I think there is no warrant for the issuance of the writ of prohibition.
It has been repeatedly decided by the Supreme Court of the United States that, where a “court, whose action is sought to be prohibited, has clearly no jurisdiction of the cause originally, a party who has objected to the jurisdiction at 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, * * * the granting or refusal of the writ is discretionary.” In re Huguely Manufacturing Co., 184 U. S. 297, 301, 22 Sup. Ct. 455, 456 (46 L. Ed. 549). That is, to state the question negatively, the writ never issues, except where the lower court is without jurisdiction, and not then if there is another remedy. To the same effect are Ex parte Hagar, 104 U. S. 520, 26 L. Ed. 816; Ex parte Harding, 219 U. S. 363, 31 Sup. Ct. 324, 55 L. Ed. 252, 37 L. R. A. (N. S.) 392; Ex parte Oklahoma. 220 U. S. 191, 31 Sup. Ct. 426, 55 L. Ed. 431; Ex parte Tiffany, 252 U. S. 32, 40 Sup. Ct. 239, 64 L. Ed. 443; Deffer v. Kimball, 7 App. D. C. 499; Morris v. Scott, 25 App. D. C. 88; Holmead v. Barnard, 29 App. D. C. 431; In re Dahlgren, 30 App. D. C. 588; In re MacFarland, 30 App. D. C. 365.
In the Dahlgren Case, Mr. Justice Robb, who spoke for the court, said:
“The court, having general jurisdiction over the subject-matter and over the parties, should- be allowed to proceed to decision. In re New York & P. R. S. S. Co., 155 U. S. 523, 39 L. Ed. 246, 15 Sup. Ct. 183. Even assuming that the judgment of the court in the circumstances of the case will be void, it may nevertheless be corrected on appeal.”
And he concluded thus:
“It appearing that the Supreme Court of the District, holding probate court, had general jurisdiction over the subject-matter of the controversy, and that, if error is committed, it may be corrected on appeal the writ of prohibition is denied;”
Summarized, the reasons of the court for granting the writ in the pending case are: (a) That the lower court has prematurely assumed. jurisdiction, I presume of the subject-matter, because there is no question about its jurisdiction of the parties;- (b) that the writ should not be withheld merely because in the exercise of his discretion a justice of this court might grant a writ of error; and (c) because, if the trial court is permitted to proceed to judgment, our *561jurisdiction of the appeal from the Rent Commission would be rendered futile and abortive. I take issue with all these.
(a) We have held recently in a number of cases that the municipal court continues to have jurisdiction of suits between landlords and tenants just as it had before the passage of the Ball Act, and can render judgment without regard to the decision of the Rent Commission, if no objection is made by the defendant to its proceeding; but, if objection is made, it must await the decision of the Rent Commission. Two of those cases are Killgore v. Zinkham, - App. D. C. -, 274 Fed. 140, and Smith v. Pyne,-App. D. C. -, 274 Fed. 142. In other words, that where the defendant insists upon it, the only evidence which the court can consider -is the decision of the Commission, which is binding upon it. These cases establish clearly and beyond any possibility of controversy that the municipal court has jurisdiction of the subject-matter of the suit in question. Hence there is no authority for issuing the writ.
(b) If it be true that the decision of the Rent Commission has been properly superseded, then it would be error for the municipal court to receive it in evidence. If nevertheless it did receive it and rendered judgment of ouster upon it, thus committing error, an application could be made to a justice of this court for a writ of error, and the presumption is that the writ would be granted, because it would be his duty to grant it, and we must assume that he would perform his duty. Boley v. Griswold, 20 Wall. 486, 22 L. Ed. 375; Shreveport v. Cole, 129 U. S. 36, 9 Sup. Ct. 210, 32 L. Ed. 589. It would require no more effort or expense—in fact, not as much-—-to make application for the writ of error than to apply for the writ of prohibition. No one justice may grant the latter writ, while the writ of error may be issued by any one of the three justices of this court.
(c) Finally, after the case on the writ of error had been docketed here, both it and the appeal from the decision of the Rent Commission would be subject to the control and discretion of the court. If the court should reverse the Rent Commission’s decision, it could also reverse the decision of the municipal court, on the ground that it had committed error in giving effect to the Rent Commission’s superseded decision. If, on the other hand, the decision of the Rent Commission is sustained, the judgment of the municipal court would also- he sustained. This demonstrates that the lower court, by proceeding to judgment, would not render futile our decision in the Rent Commission appeal.
The course just indicated would be in harmony with the firmly established law with respect to the writ of prohibition, while, the decision of the court, as I view it, disregards that law.
Therefore I dissent.