(dissenting).
I respectfully dissent from the conclusions reached in the majority opinion. That opinion states that the only question before the courts at this time, in the instant matter, is whether the commissioner has jurisdiction to determine that the warden shall or shall not be retained in the state service, or whether the commissioner has been deprived of such jurisdiction by the proceedings mentioned above. The truth of the matter is that the only question before this court on this application for a writ of prohibition is whether the district court had jurisdiction to determine whether the commissioner of corrections had on August 26, 1960, finally exercised the jurisdiction which he originally had. In other words, the undetermined question is whether the disposition made by the commissioner on August 26, 1960, is governed by that portion of Minn. St. 15.0418 which reads:
“* * * Informal disposition may also be made of any contested case by stipulation, agreed settlement, consent order or default.”
It is well established that a writ of prohibition is a preventive rather than a corrective remedy and that such writ is not one of right but of discretion.
We said in State ex rel. United Elec. R. & M. Workers v. Enersen, 230 Minn. 427, 428, 42 N. W. (2d) 25, 26, that:
“Where court’s jurisdiction, or lack of it, must be determined from the facts to be established by the trial, we should not determine the case on its merits on application for the writ.”
We have long since established that the three essentials necessary to justify the issuance of a writ of prohibition are: (1) That the court or officer is about to exercise judicial or quasi-judicial power; (2) that the exercise of such power is unauthorized; and (3) that it will result in injury for which there is no other adequate remedy.
According to a principle established by numerous decisions of our court the lack of authorization to exercise judicial power must be found in the conduct of proceedings by which the tribunal wholly usurps jurisdiction or exceeds its legitimate jurisdiction.1
*242Matters which pertain to the propriety of the tribunal’s action, otherwise than in the jurisdictional sense, are not subject to review on prohibition, nor does a writ of prohibition ordinarily he where appeal affords an adequate remedy. Juster v. Grossman, 229 Minn. 280, 38 N. W. (2d) 832; State ex rel. Minnesota Nat. Bank v. District Court, 195 Minn. 169, 262 N. W. 155; 15 Dunnell, Dig. (3 ed.) § 7842.
In its procedural aspects the power to issue writs of prohibition in Minnesota is vested exclusively in the supreme court. Minn. St. 480.04, 587.01. This proceeding, therefore, constitutes an original proceeding based on the constitutional clause which grants the supreme court original jurisdiction in such remedial cases as may be prescribed by law. Minn. Const, art. 6, § 2. The prohibition against jury trials in the supreme court found in the same section applies to original jurisdiction of the supreme court, and thus all issues in prohibition cases must be decided upon affidavits.2
Section 605.09(2) provides for appeal to the supreme court “From an order * * * which grants, refuses, dissolves, or refuses to dissolve, an injunction, * * The fact that it may be less summary and more expensive does not ipso facto render appeal inadequate. State ex rel. Beede v. Funck, 211 Minn. 27, 299 N. W. 684.
In State ex rel. Eau Claire Dells Improvement Co. v. District Court, 26 Minn. 233, 235, 2 N. W. 698, 699, Mr. Chief Justice Gilfihan said:
“* * * where the party may raise the question of want of jurisdiction over the person in the court in which the action is brought, and have a review of its decision by this court, upon appeal, that is his proper remedy.”
We held in In re Estate of Davidson, 168 Minn. 147, 148, 210 N. W. 40, 41:
“* * * whenever in an ordinary action it becomes necessary for *243the court to decide upon its own jurisdiction, and error in deciding that question can be corrected upon appeal, writ of error or certiorari, a writ of prohibition should not be granted.”
Clearly § 605.09(2) provides an immediate and adequate remedy by appeal and a writ of prohibition ought not to be granted.
The files and proceedings before us indicate that Warden Rigg commenced an action by summons and complaint filed September 15, 1960, in the Ramsey County District Court and also filed a motion, supported by affidavits, for a temporary injunction. An ex parte order to show cause and restraining order was thereafter issued by the Honorable Clayton Parks. A bond was filed in accordance with statutory requirements.
The commissioner filed his petition in this court for an alternative writ of prohibition September 19, 1960, which writ was issued. Respondents Douglas C. Rigg and Clayton Parks filed separate returns and answers to said alternative writ. The facts relied upon by both sides have been presented by pleadings and affidavits. These indicate that on the night of August 25, 1960, the commissioner of corrections notified Warden Rigg to be present in his office on the morning of August 26, 1960, concerning the matter of alleged “excessive” food requisitioning in May and June 1959. Pursuant to such notice and order, Warden Rigg appeared at the scheduled hearing at the commissioner’s office in St. Paul. The hearing on food requisitioning was conducted by the commissioner of corrections and continued from 9 a. m. until 4:15 p. m. except for an interval for lunch.
In making the charges on August 26 the commissioner read to the warden from a paper or report which he had received from the public examiner regarding food requisitions and the dollar amounts thereof.
The files further indicate that at the hearing conducted on August 26 charges made by the commissioner of corrections were contested by Rigg; that all matters were gone into fully regarding the alleged misconduct as to food requisitions; that agreement was reached between the commissioner and Rigg to settle and terminate the matter in order that the program at the Minnesota State Prison might be carried forward; that it was openly stipulated between the commissioner and the *244warden that the commissioner would impose, and the warden would accept, disposition of the matter upon the following terms and conditions; to wit, the warden had not been guilty of an illegal act but had been guilty of an error of judgment; he would therefore be officially suspended from his duties as warden without pay for a period of 15 days certain, to commence on August 27, 1960; and to terminate on September 11, 1960; and thereafter he would be reinstated to his full duties and status as warden on the condition that he pay to the State of Minnesota such amounts as might be found to be due for any alleged excessive withdrawal of foodstuffs during May and June 1959 to be determined following consultation between the warden and the state public examiner. The files indicate that the warden accepted such determination as final disciplinary action and final disposition of the matter; that it was so agreed between the commissioner and the warden; and that the warden forthwith entered upon compliance therewith.
At the conclusion of the hearing on August 26, 1960, at about 4:15 p. m., the commissioner of corrections, in a joint, public news conference with the warden and with various newspaper reporters, announced the decision as aforesaid and stated to the press that at the conclusion of the 15-day suspension period the matter would be closed and the warden was then to be returned to his duties and his office. Full publication was given to this report by the press, and the warden complied with the agreement and left the prison on August 27, 1960, discontinuing his duties as warden for the period of 15 days.
On September 2, 1960, the commissioner apparently changed his position and served upon the warden the notice of hearing and order to show cause, notice and order of suspension, and statement of charges, based upon the same allegations and charges relating to the excessive requisition of foodstuffs from the general commissary in May and June 1959.
There is nothing to indicate that the normal remedy of appeal would not be adequate here since direct appeal from the order sought in the district court below would be available. It is not the function of this court to anticipate or prohibit an erroneous ruling. No issue on the merits of the controversy below can properly be raised upon the *245application for the writ of prohibition we are here considering. State ex rel. Flodin v. District Court, 222 Minn. 546, 25 N. W. (2d) 692; State ex rel. Roberts v. Hense, 135 Minn. 99, 160 N. W. 198.3
In its application to have the writ of prohibition made absolute, relator relies upon State ex rel. Sheehan v. District Court, 253 Minn. 462, 93 N. W. (2d) 1, certiorari denied, 359 U. S. 909, 79 S. Ct. 585, 3 L. ed. (2d) 573. The Sheehan case involved Minn. St. 72.28, which seeks to prevent unfair competition in the business of insurance. Subd. 1 thereof provides for issuance of a statement of charges by the insurance commissioner and service thereof upon any person engaged in unfair methods of competition and for a hearing on said charges. Subd. 2 thereof provides that if the statement charges a violation of §§ 72.20 to 72.33, and if the prohibited practice has not been discontinued, “the commissioner may, through the attorney general, at any time after 20 days after service of the report, cause a petition to be filed in the district court within the district wherein the person against whom the charges were made resides.” A transcript of the proceedings before the commissioner, including all evidence taken together with the report and findings, must be filed with such petition and upon such filing the district court acquires jurisdiction with the power to make appropriate orders and to issue such writs as are ancillary to its jurisdiction or necessary to its judgment to prevent injury to the public pendente lite. Clearly that case presented a situation which justified making the writ of prohibition absolute because it appeared unequivocally that the inferior court was about to take jurisdiction in a matter over which it possessed no jurisdiction at the time.
The mere fact that an inferior court has been asked to proceed beyond its jurisdiction is ordinarily insufficient to justify issuing the writ, for the presumption is that the court will act only within its jurisdiction. 15 Dunnell, Dig. (3 ed.) § 7843. As to the purpose and object of a temporary injunction, see Minneapolis Elec. Lamp Co. v. Federal Holding Co. 161 Minn. 198, 202, 201 N. W. 324, 325.
In School Dist. No. 1 v. Lindhe, 195 Minn. 14, 17, 261 N. W. 486, 488, this court said:
*246“It appears to be the general rule that injunction will not be granted against public officers to restrain them from exercising discretion where they are intrusted with discretionary power, and that such officers will not be restrained from performing official acts which they are by law required to perform or acts which are not in excess of the authority and discretion reposed in them. Nevertheless it is a rule of very general application that where public officers are acting in breach of trust or unlawfully or without authority or threatening to do so and such acts will result in irreparable injury, they may be enjoined.” (Italics supplied.) Citing 32 C. J., Injunctions, §§ 383, 384.4
If respondent Rigg in seeking injunctive relief can show that the remedy of the administrative agency has either been exhausted or that the pursuit of such remedy will cause imminent and irreparable harm to him as distinguished from merely speculative damages, then, of course, he should not be denied injunctive relief. See, Thomas v. Ram-berg, 240 Minn. 1, 60 N. W. (2d) 18.
In the recent case of Marine v. Whipple, 259 Minn. 18, 22, 104 N. W. (2d) 657, 660, this court again enunciated the rule that where the normal remedy of appeal is not shown to be inadequate, a writ of prohibition cannot properly be used to anticipate or prohibit an erroneous ruling of the lower court, and Mr. Chief Justice Dell, speaking for this court, stated:
“* * * to grant prohibition under the circumstances before us would, in our opinion, only circumvent the statutory scheme of appellate review. Presumably the normal remedy of appeal is adequate, particularly where, as here, direct appeal from the order sought is available.5 Relators have not sustained their burden of showing the *247inadequacy of this remedy. However compelling the reasons may be for deferring action on the petition involved, they do not go to the jurisdiction of the district court nor the propriety of issuing a writ of prohibition. These matters affect the merits and should properly be taken into consideration by the district court if presented to it. It is not the function of this court to anticipate or prohibit an erroneous ruling.”
While the question of res judicata as to the commissioner’s original determination was discussed before this court upon the application for the writ, it is clear that that question is not before us at this stage of the proceedings. It may properly be taken into account by the district court in the injunction proceedings.6
It has already been indicated that in the administrative proceedings the commissioner would seek the appointment of a referee, preferably a district judge of this state, to conduct the hearing required. The controversy is already in the District Court of Ramsey County where it can be determined whether any adjudication made on August 26, 1960, acceded to by both parties, is binding. Anyone aggrieved would have the normal remedy of appeal which is wholly adequate, particularly where, as here, direct appeal from the order sought is available.
While it would be improper to express any opinion concerning the merits, it seems clear that the ultimate determination of the questions presented here must of necessity be made after trial of the pending action in the court below. Less harm will result to either party if the terms of the restraining order are carried out pendente lite than if we were now to make the writ applied for absolute.
Clearly justice will best be served by discharging the writ of prohibition, thereby permitting the enforcement of the restraining order pendente lite until the rights of all the parties may be determined and declared after a full trial of the issues involved on the merits.
*248Elements clearly necessary to justify making the writ absolute are absent in the instant case and the writ should be discharged.
See, Riesenfeld, Bauman, and Maxwell, Judicial Control of Adminis*242trative Action by Means of the Extraordinary Remedies in Minnesota, 36 Minn. L. Rev. 436, 443, and cases cited in note 421.
See, Id. 450, 451.
See, Id. 446, et seq.
See, J. F. Quest Foundry Co. v. International M. & F. W. Union, 216 Minn. 436, 440, 13 N. W. (2d) 32, 34; Oehler v. City of St. Paul, 174 Minn. 410, 219 N. W. 760; 9 Dunnell, Dig. (3 ed.) § 4485. As to the rule governing appellate review of the action of trial courts in granting or refusing injunctions, see Love v. Atchison, T. & S. F. Ry. Co. (8 Cir.) 185 F. 321, 107 C. C. A. 403; Minneapolis Gaslight Co. v. City of Minneapolis, 123 Minn. 231, 246, 143 N. W. 728, 734.
See, Riesenfeld, Bauman, and Maxwell, Judicial Control of Administrative Action by Means of the Extraordinary Remedies in Minnesota, 36 *247Minn. L. Rev. 435, 446, et seq. An order granting a mandatory injunction is appealable under Minn. St. 605.09(2).
An exhaustive treatise of the doctrine of res judicata as applied to administrative proceedings may be found in 2 Davis, Administrative Law Treatise, §§ 18.01 to 18.12.