$756. The effect of judgment of ouster upon the officer himself, where the information is brought to test the right of one usurping an office, is to constitute a full and complete amotion from the office, and to render null and void all pretended official acts of the officer after such judgment, and the party thus amoved is entirely divested of all official authority and excluded from the office as long as the judgment remains in force. Such judgment is therefore regarded as an effectual bar to proceedings in mandamus, to procure a restoration to the office.2 And in such case, the court will presume, upon its judgment being made known to the chief executive officer of the state, whose duty it is to commission officers, that he will comply with the judgment and commission the person entitled to the office as declared by the judgment of the court. Upon this presumption an attachment will be refused against rights exercised, as for misuser or abuser, after the possession of much property and the exercise of extensive rights and credits; and the judgment is the same in both cases. Consequently, the judgment could not direct a seizure of the corporate possessions, as a forfeiture for the violation of the charter. Nor is the second ground-that the property falls to the state for the want of an owner, on the dissolution of the corporation-more tenable as a foundation on which to sustain this judgment. For the ownership of the corporation does not cease until its dissolution. And whether it is dissolved by the judgment of seizure or not, until the state has execution on that judgment, is not here very material. For if the corporation is dissolved by the judg ment the judgment must be regu larly entered, and have its full effect before the dissolution takes place; and it is not till then that the prop erty can be said to be without an owner. The loss of the property to the corporation is a consequence of the judgment; and it is a contradiction of the first principles of reason, a complete reversal of effect and cause, to make such loss of property a part of the judgment. That which can not exist until after the judgment, can never be the subject-matter on which the judgment is given. But the better opinion seems to be, that the corporation is not dissolved by the judgment of seizure, but that it exists until the franchises are seized by the execution on that judgment. See 2 Kyd on Cor. 409, 10, and the authorities there cited. Consequently, the last shadow of a support for this judg ment, on this ground, must vanish." King v. Serle, 8 Mod. Rep. 332; State v. Johnson, 40 Geo. 164. And see King v. Hull, 11 Mod. Rep 390. the unsuccessful party for contempt of court in still assuming to exercise the functions of the office.1 757. It is to be observed, however, that judgment of ouster does not necessarily have the effect of declaring that a vacancy exists in the office, since this is necessarily dependent upon the further question of whether there is any one else entitled to the office. And it is competent for the court, upon the hearing, to give judgment of ouster against the respondent, without determining as to the relator's right, and where there is doubt as to the relator's election to the office in controversy, judgment may be given against the respondent, leaving the relator's right to be determined by another proceeding. 3 $ 758. The propriety of imposing a fine in addition to judgment of ouster is usually regarded as a matter of sound judicial discretion, and where no improper motives are alleged or shown against the party ousted, the fine imposed will be merely nominal. And though the omission of a fine may be technically improper, yet it is so conclusively for the benefit of the respondents that they can not afterwards assign it for error.5 $ 759. As regards the objection that leave of the court was not obtained in the first instance to the filing of the information, it is held merely a formal objection, and after judgment of ouster is obtained the judgment will not be reversed. because of such objection. And where, upon overruling respondent's demurrer to the complaint or petition, the court is satisfied that he can not be benefited by permission to answer, judgment of ouster may be rendered forthwith." 6 $760. Judgment of ouster may be given against one who was not duly elected to the office claimed, notwithstanding the return or certificate of a board of canvassers of the election in his favor, since such return is by no means conclusive and the courts may go behind it and examine the facts as to the legality of the election.1 Nor will the holding of a commission for the office prevent the court from giving judgment of ouster, if the incumbent was not legally elected, since the title to the office is derived from the election and not from the commission. Even though the incumbent were properly elected in the first instance, yet if he was never sworn into the office, judgment of ouster may be given.3 § 761. In Alabama, it is held that the refusal of a court of general common law jurisdiction to allow an information in the nature of a quo warranto to be filed, upon the relation of a private citizen claiming a right to the franchise or office which is alleged to have been usurped, is so far a final judgment that it may be reviewed on writ of error.4 1 People v. Van Slyck, 4 Cow. 297; State v. Steers, 44 Mo. 223. 2 State v. Steers, supra. 3 In re Mayor of Penryn, Stra. 582. State v. Burnett, 2 Ala. 140. THE LAW OF PROHIBITION. CHAPTER XXI. OF THE WRIT OF PROHIBITION. I. NATURE AND PURPOSE OF THE WRIT, II. PRINCIPLES GOVERNING THE JURISDICTION, $ 762 773 795 I. NATURE AND PURPOSE OF THE WRIT. S762. Definition of the writ. 763. Comparison of prohibition with mandamus and injunction. 764. Ancient origin of the writ; used in England against ecclesiastical courts. 765. The writ used in this country; courts granting it; not a writ of right. 766. A preventive rather than a corrective remedy. 767. Only allowed for usurpation of power; not granted where court has jurisdiction. 768. Proceedings not a part of original action. 769. Distinction as to proceedings of a judicial and of a ministerial nature; writ only granted for the former. 770. Prohibition not granted where other remedy exists. 771. Not granted where relief may be had by appeal. 772. Not allowed to take the place of writ of error or certiorari. 8762. The writ of prohibition may be defined as an extraordinary judicial writ, issuing out of a court of serien jurisdiction and directed to an inferior court, for the purpose of preventing the inferior tribunal from usurping a jurisdiction with which it is not legally vested. It is an original remedial writ, and is the remedy afforded by the common law against the encroachments of jurisdiction by inferior courts, and is used to keep such courts within the limits and bounds prescribed for them by law. The object of the writ being to restrain subordinate judicial tribunals of every kind from exceeding their jurisdiction, its use in all proper cases should be upheld and encouraged, since it is of vital importance to the due administration of justice that every tribunal vested with judicial functions should be confined strictly to the exercise of those powers with which it has been by law entrusted. 3 § 763. Some points of similarity may be noticed between this extraordinary remedial process and the extraordinary remedy of courts of equity by injunction against proceedings at law. Both have one common object, the restraining of legal proceedings, and each is resorted to only when all other remedies for attaining the desired result are unavailing. This vital difference is, however, to be observed between them, that an injunction against proceedings at law is directed only to the parties litigant, without in any manner interfering with the court, while a prohibition is directed to the court itself, commanding it to cease from the exercise of a jurisdiction to which it has no legal claim. An injunction usually recognizes the jurisdiction of the court in which the proceedings are pending, and proceeds on the ground of equities affecting only the parties litigant, while the prohibition strikes at once at the very jurisdiction of the court. The former remedy affects only the parties, the latter is directed against the forum itself. As compared with the extraordinary remedy by mandamus, prohibition may be said in a certain sense to be its exact counterpart, since mandamus is an affirmative remedy, commanding certain things to be done, while prohibition is nega 2 1 Thomas v. Mead, 36 Mo. 232. People v. Works, 7 Wend. 486. Quimbo Appo v. The People, 20 N. Y. 531. |