DISSENTING OPINION. I concur in the dissenting opinion of Richman, C.J., and respectfully add my own thoughts as follows:
It is relators' contention that the respondent court and its judge are without jurisdiction of the subject matter and the parties in the injunction suit. Other contentions are presented that, in my opinion, are not germane to this original action and hence will not be considered.
It is provided by statute, § 3-2201, Burns' 1933, that this court may issue writs of prohibition to restrain and confine circuit courts to their lawful jurisdiction. The same statute authorizes circuit courts and the judges thereof to grant restraining orders and injunctions.
The merits of the injunction suit pending in the respondent court is not before us. To speak of its merits would be to indulge in dicta — and therefore not in point. It would be otherwise if the case were before us on appeal. The only question before us is whether the respondent court and judge have jurisdiction of the subject matter of the action and of the parties thereto. We are not now concerned with the nature of the rulings made.
Relators rely upon State ex rel. Fry v. Lake Superior Court (1933), 205 Ind. 355, 186 N.E. 310, and other cases following that decision. These original actions *Page 487 were considered by this court as though on appeal and, on the theory that since the respondents had made an erroneous decision in granting a restraining order, they were without jurisdiction in the cases.
I am unable to follow this line of thought. The duty to decide necessarily carries with it the possibility of error. The possibility of error or even its certainty does not affect the court's jurisdiction. Once properly acquired jurisdiction remains and is not affected or influenced by errors committed. If errors are committed, such may be reviewed and corrected on appeal. Errors committed, save the single error of usurping jurisdiction, are reviewable only on appeal.
In State ex rel Fry v. Lake Superior Court, supra, I think this court was in error in inferentially holding that the superior court was without jurisdiction to issue a restraining order, because the action was against the state. An action to enjoin state law enforcement officers is not an action against the state requiring state consent. Nor does the issuance of a restraining order when in the opinion of this court none should have been issued, destroy or affect the jurisdiction of the court. This court has no jurisdiction to issue a writ of prohibition because it believes a nisi prius court might make an erroneous order as in State ex rel. Freed v. Martin CircuitCourt (1938), 214 Ind. 152, 14 N.E.2d 910. This court ingeniously found a novel jurisdiction a court must possess — jurisdiction of the particular case — in order to protect it from the coercive power of prohibition. See State ex rel. Kunkel v.La Porte Circuit Court (1936), 209 Ind. 682, 200 N.E. 614.
This line of cases began with the State ex rel. Fry case in 1933 and continued for a dozen years. They mark a period in the development of the law of prohibition in Indiana. Under the cloak of liberalism and expedience, *Page 488 in interpreting the law of prohibition, this court engaged in the usurpation of jurisdiction and power it did not possess. The continued exercise of a usurped power can never mature it into law. But its continued exercise may deceive even lawyers, judges and statesmen. The first erroneous decision having been made, other similar actions were filed and similar erroneous decisions were made and these errors are now cited as precedent for action in this case. Laws based on error cannot endure, and this unfortunate situation should be corrected now.
The jurisdiction thus usurped by this court belongs to thenisi prius courts and should be restored to them. The evil effect of government by usurpation was nicely expressed by a revered American statesman thus:
"But let there be no change by usurpation; for though this in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always overbalance in permanent evil any partial or transient benefit which the use can at any time yield."
It is the precedence of these erroneous decisions that is torturing us now, and causing my dissent.
I do not think our authority to issue writs of prohibition should be liberalized or extended. We should not use it as a substitute for appeal. We should not use it to supervise or direct proceedings in nisi prius courts. The idea of so using it belongs to a recent period. I am unable to entertain it. It cannot endure as a part of the law of our state.
My dissent is based on a matter of procedure. I think the questions attempted to be presented in this action may be considered only on appeal, and that it is of vast importance to the judiciary of the state that they should be considered regularly and orderly. The cases relied upon — State ex rel.Fry v. Superior Court, supra, and *Page 489 similar cases are based upon a usurped jurisdiction by this court. They should be overruled. Orderly procedure in our courts requires such action. The difference between proceeding orderly by appeal and by a writ of prohibition is the difference between government under the Constitution and laws of the state and government by usurpation. Our court should be eager in its opposition to usurpation from any source, and it should be fervent in its support of the Constitution and laws.
Our nisi prius courts should feel secure from usurpation or oppression from any source, but especially from this court. This security they have under our Constitution and laws — when properly administered. We should have confidence in their integrity and ability, and should feel that they will not intentionally commit error. No matter how obvious the facts may be in this action, I am unwilling, by dicta, to offer any suggestions to the trial court. The facts that impress me may likewise impress it. In any event its decision can be reviewed and if necessary, corrected on appeal.
The rules governing our jurisdiction in prohibition writs are well stated in State ex rel. Harkness v. Gleason (1918),187 Ind. 297, 119 N.E. 9. We should follow that authority in this case. Since the respondent judge had complete jurisdiction of the subject matter and of the parties, the temporary writ of prohibition should be dissolved and the permanent writ should be denied.
Note. — Reported in 62 N.E.2d 153.