shall be exercised." Mechem, Pub. Of. §§ 1013, 1014. Under the constitution the legislature may provide for the removal of municipal officers. It certainly has never been regarded in this state that the officer or body upon whom this power is conferred acts in a purely political, administrative, or legislative capacity. Such officer or body acts, and must of necessity act, in a quasi judicial capacity, and the method of procedure must be of a quasi judicial character. Stockwell v. Township Board, 22 Mich. 341; Dullam v. Wilson, 53 Id. 392; Clay v. Stuart, 74 Id. 411; Fuller v. Attorney General, 98 Id. 96. Such officer or body then becomes an inferior tribunal, amenable to the writ of prohibition when acting in excess of the jurisdiction conferred. In such cases it is of little consequence what name is given to the power conferred. The name cannot relieve it of its essential character. It would be a reproach to the law if it did not provide a speedy remedy by which such tribunals can be prohibited from the exercise of an excess of authority, or of an authority which they do not possess. We are of the opinion that the writ lies in the present case. State v. Common Council, (Minn.) 55 N. W. 118; People v. Cooper, 57 How. Pr. 416; 1 Dillon Mun. Corp. § 191 (4th ed. § 253.)

2. While it appeared, upon the argument, to be conceded that the sufficiency of the charges is not here in issue, still, we deem it proper to say that the charges preferred, so far as they relate to the acts of Mr. Speed committed before his appointment to and induction into this office, are clearly beyond the jurisdiction of the respondents to determine.

3. It was settled in Speed v. Common Council, supra, that the mayor could not revoke the appointment when once made, and that neither he nor the common council possessed the power to remove at will. That case was ably argued and received the most careful examination by this court. We see no occasion to change our views, or to question the soundness of the conclusions then reached.

Counsel for respondents, in their brief upon the application for a rehearing in that case, concede that "there is no provision whatever for the removal of an appointive officer upon charges nor for the trial of such charges;" but they contend (1) that the power of removal is necessarily implied from the language used in the act of 1893; and (2) that the power of removal for cause is implied. from the character and from the nature of the municipal organization.

No support for the positions of respondents can, we think, be found in the charter itself. The subject of removals is completely covered by its provisions, and it excludes removals in any other manner than is there provided. Elective officers, with few excep tions, can be removed for cause. This, under the well established rule, excludes the power to remove at will. Certain appointive officers, under the charter, can be removed at will, without charges or trial. Charter, chap. 4, § 19. This likewise excludes the power to remove for cause. Where the power to remove at will is given, the law does not contemplate that the officer may be put to the expense of a trial for cause, and have charges of official misconduct placed before the public.

It is also significant that the act gives the common council no voice, either in the appointment or confirmation of the city counselor. The absolute authority and the entire responsibility of his appointment, are given to the mayor, without power of removal at will or for cause. There is nothing in the act which shows any intention on the part of the legislature to confer such power upon the common council; nor do we think such power is inherent in the council, which is the governing body of the municipal corporation, and derives its powers from express legislative enactments. The motion to vacate the order must therefore be denied, with costs.

The other justices concurred.

Prohibition will not issue to the governor of a state. Grier v. Taylor, 4 McCord (Tenn.) 206.

Supreme Court of the United States. December, 1866.

4 Wall. 158.

On a motion for prohibition.

At the last term of this court the relator made application for a writ of prohibition to the judge of the District Court of the Northern District of California, to prevent that court from proceeding further in a certain cause in admiralty.

Mr. Justice MILLER delivered the opinion of the court.

The writ of prohibition, as its name imports, is one which commands the person to whom it is directed not to do something which, by the suggestion of the relator, the court is informed he is about to do. If the thing be already done, it is manifest the writ of prohibition cannot undo it, for that would require an affirmative act; and the only effect of a writ of prohibition is to suspend all action, and to prevent any further proceeding in the prohibited direction. In the case before us, the writ, from its very nature, could do no more than forbid the judge of the District Court from proceeding any further in the case in admiralty.

The return shows that such an order is unnecessary, and will be wholly useless, for the case is not now pending before that court, and there is no reason to suppose that it will be in any manner revived or brought up again for action. The facts shown by the return negative such a presumption.

The suggestion that there are or may be other cases against the relator of the same character can have no legal force in this case. If they are now pending, and the relator will satisfy the court that they are proper cases for the exercise of the court's authority, it would probably issue writs instead of a rule, but a writ in this case could not restrain the judge in the other cases by its own force, and could affect his action only so far as he might respect the principle on which the court acted in this case. We are not prepared to adopt the rule that we will issue a writ in a case where its issue is not justified, for the sole purpose of establishing a principle to govern other cases.

We have examined carefully all the cases referred to by counsel which show that a prohibition may issue after sentence or judgment; but in all these cases something remained which the court or party to whom the writ was directed might do, and probably would have done, as the collection of costs, or otherwise enforcing the sentence.

Here the return shows that nothing is left to be done in the case. It is altogether gone out of the court.

The rule heretofore granted in this case is

Discharged.

The United States Supreme Court may issue the writ only to the district courts in admiralty cases, ex parte Christy, 3 How. 292. Circuit courts may issue it only to aid an already acquired jurisdiction. In re Binninger, 7 Blatchford 159. No court with mere appellate jurisdiction may issue it. Memphis v. Halsey, 12 Heiskell, 210.

III. CORRECTS ONLY EXCESS OF JURISDICTION.

APPO V. THE PEOPLE.

Court of Appeals of New York. March, 1860.
20 N. Y. 531.

SELDEN, J. The first question to be considered is, whether the writ of prohibition was a proper remedy, assuming that the court of Oyer and Terminer had no authority to grant a new trial upon the merits after conviction and sentence for the crime of murder.

The office of this writ is to restrain subordinate courts and inferior judicial tribunals of every kind from exceeding their jurisdiction. It is an ancient and valuable writ, and one the use of which in all proper cases should be upheld and encouraged, as it is important to the due and regular administration of justice that each tribunal should confine itself to the exercise of those powers with which, under the constitution and laws of the state, it has been entrusted.

But it is said, that when an inferior court or tribunal has jurisdiction of the action, or of the subject matter before it, any error in the exercise of that jurisdiction can neither be corrected nor prevented by a writ of prohibition.

It is true that the most frequent occasions for the use of the writ are where a subordinate tribunal assumes to entertain some cause or proceeding over which it has no control. But the necessity for the writ is the same where, in a matter of which such tribunal has jurisdiction, it goes beyond its legitimate powers; and the authorities show that the writ is equally applicable to such a case. Mr. Jacob, in treating of this writ, after saying that it may issue to inferior courts of every description, whether ecclesiastical, temporal, military or maritime, whenever they attempt to take cognizance of causes over which they have no jurisdiction, adds: "or if, in handling of matters clearly within their cognizance, they transgress the bounds prescribed to them by the laws of England, as where they require two witnesses to prove the payment of a legacy." Jac. Law. Dict., title Prohibition.

These cases prove that the writ lies to prevent the exercise of any unauthorized power, in a cause or proceeding of which the subordinate tribunal has jurisdiction, no less than when the entire

cause is without its jurisdiction. The broad remedial nature of this writ is shown by a brief statement of a case by Fitzherbert. In stating the various cases in which the writ will lie, he says: "And if a man be sued in the Spiritual Court, and the judges there will not grant unto the defendant the copy of the libel, then he shall have a prohibition directed unto them for a surcease,” etc., etc., until they have delivered the copy of the libel, according to the statute made Anno 2 H., 5 (F. N. B., title Prohibition.)

This shows that the writ was never governed by any narrow technical rules, but was resorted to as a convenient mode of exercising a wholesome control over inferior tribunals. The scope of this remedy ought not, I think, to be abridged, as it is far better to prevent the exercise of an unauthorized power than to be driven to the necessity of correcting the error after it is committed. I have no hesitation, therefore, in holding that this was a proper case for the use of the writ, if the Supreme Court was right in the conclusion to which it arrived at general term.

The judgment should, I think, be affirmed.

Prohibition may not be used to correct mere errors of law not involving an excess of jurisdiction. Buskirk v. Judge, 7 W. Va. 91; Murphy v.

Sup. Court, 58 Cal. 520.

IV. DISCRETION OF COURT.

PEOPLE EX REL. ADAMS V. WESTBROOK.

Court of Appeals of New York. May, 1882.
89 N. Y. 152.

RAPALLO, J. The relator has certain equitable claims against the estate of Peter G. Fox, deceased, upon which he brought an action against Fox in his life-time in the Supreme Court. A decision was rendered in that action in favor of the relator, and judgment was entered on such decision, but the judgment was set aside on the ground that Fox had died before the findings and the conclusions of the trial judge were signed, and the action was ordered to proceed as if no decision or findings had been signed. The relator, therefore, stands as plaintiff in an equitable action pending in the Supreme Court against Peter G. Fox, now deceased.