
    No. 8584.
    The State ex rel. F. L. Fernandez vs. W. T. Houston, Judge, et al.
    By Act No. 5 of 1870, extra session, no court within this State has the jurisdiction to entertain an application for or the power to grant a writ of mandamus for the purpose of compelling the auditing officer of the city of New Orleans to issue a warrant for the payment of money on the disbursing officer óf said city. A writ of prohibition will issue from the Supreme Court under-its supervisory control to restrain the enforcement of a writ of mandamus issued in such circumstances by an inferior court.
    ApPLICATION for a writ of Prohibition. Houston, J., Respondent.
    
      JS. JE. Mo'ise, for Relator:
    A.
    1. Where two parties claim to be paid out of one fund, and the trustee is an officer of a municipal corporation, and where one of the parties has enjoined the officer from paying the other, and that other subsequently procures a mandamus to issue, the party enjoining has a sufficient interest to intervene in the mandamus proceedings, and necessarily to sue out a prohibition from this Court against the Judge who issued the mandamus
    2. A mere stranger to the proceedings can apply for a writ of prohibition. Bacon’s Abr. Tit. Prohibition C. 7; Comyn’s Dig. Prohibition, E: 2 Coke’s Inst. 602; Worthington vs. Jeffries, E. E., 10 C. P. 370 ; 12 Eng. B. 440; Moak's notes.
    3. If even intervenor could not, the defect is cured by the respondent in the lower court making himself plaintiff in this.
    B.
    1. Where intervenor takes a case just as he finds it, and joins respondent in his defenses, setting up no new matter, because one of those defenses happens to be the jurisdiction of tbe court, he is not estopped, since he changes no issue, and simply aids defendant in making out his defense.
    C.
    1.Where a court has neither jurisdiction nor power to issue a mandamus, the Supreme Court may issue a prohibition to the Court thus usurping. C. P. 845-846.
    D.
    1. Under Sec. 1, Act Ho 5, 1870, no court of the State can mandamus the Administrator of Public Accounts to warrant on the Administrator of Finance of the City of New Orleans.
    2. The change in the name of the officer from Controller to Administrator of Public Accouuts does not affect the matter. Ho is the “auditing officer” of the Act. 30 An. 79.*
    3. The Act makes no distinction of persons or claims.
    4. The fact that the claim is for the salary of an officer makes no difference.
    5. So far as the auditing officer of the city is concerned, the articles of the C. P. on mandamus do not apply. 30 An. 79.
    6. The Act applies to liquidated and unliquidated demands. 30 An. 79.
    7. The fact that a judgment creditor must be paid out of the funds of 1880 makes no difference.
    8. In taking from the city’s creditor the remedy by mandamus another remedy was given, for any injury caused by an auditing officer’s unjust refusal to pay a claim. Sec. 4, Act Ho. 5, 1870.
    9. The remedy given is an adequate one. 30 An. 79.
    E,
    1. Where one branch of a court enjoins the doing of an act, another co-ordinate branch has no power or jurisdiction to oí der tbe act done.
    2. An injunction is a bar to a mandamus. Wait's Actions and Defenses, vol 4, pp. 376-377 ; High Ex. Leg. Hem., chap. 1, §23. Ibid, Part 1, chap. 1. § 9.
    3. Under tbe Constitution granting supervisory control to this Court over the lower courts a prohibition will issue. 51 Barb. 312; 20 H. X. 531-542; 21 An. 113; 19 Wend. 154; 23 Ala. 94.
    Ho Court can command the doing of an act which is a crime in law. C. P. 834; High Ex. Leg. Hem., part 1, chap. If, § § 32, 40.
    The mandamus issued by the lower court commands Huger to commit a crime. Sec. 6, Act Ho. 38 of 1879; Wait’s Actions and Defenses, vol. 4, pp, 366, 377.
    
      Joseph P. Hornor, Francis W. Baker, for Respondent:
    1. A writ of prohibition can only issue where the court having no jurisdiction at all, ratione mateHce and personae, clearly usurps jurisdiction. 32 An. 1092; 32 An. 1185; 32 An. 553 ; 32 An. 676; 32 An. 549; 32 An. 1222; 32 An. 217; 33 An. 923; State e# rel. Brown vs. Houston, H. H.
    2. The writ of prohibition cannot be used to review the decision of inferior Courts in unappealable cases over which they had jurisdiction, however erroneous such decision may have heen.
    3. Act Ho. 5 of 1870, E. S , has no application to a claim for services rendered in 1880, and which is payable out of the revenues of 1880. Such a claim is not required to be registei ed and paid in order of registry, but lias a vested right to he paid out of that particular year’s revenues. 33 An. 567.
    4. Acts which should have beeu done at a particular time, and which are done thereafter under a judgment of court, are to he considered as if done at the proper time and take efft ct as of the proper date.
    5. Act Ho. 38 of 1879 does not give the City Council the right, by refusing to pass an ordinance at the proper timo, to postpone payment of claims for services rendered in April until after payment of similar claims of December.
    
      C. "Where there is no actual conflict of jurisdiction there is no cause of complaint. 33 An. 925.
    7. One -who voluntarily intervenes before a court and submits the adjudication of his lights, cannot complain of the jurisdiction of such court. 32 An. 1185.
   Tlie opinion of the Court was delivered by

Pocmí, J.

Relator charges that in entertaining an application for, and in granting a mandamus in favor of J. Henry Behan, against the Administrator of Public Accounts of the City of New Orleans, tlie defendant Judge has usurped j urisdiction not conferred upon him bylaw.

The record shows that Behan, a judgment creditor of the city, applied in the District Court for a writ of mandamus against tlie Administrator of Public Accounts, for the purpose of compelling that officer to issue to him a warrant of $200, as balance due on his salary as a former city officer, for the month of April, 1880.

Relator herein, alleging interest, as a creditor of the city, in that controversy, intervened in the proceeding, for the purpose of defeating Behan in his application.

Among other grounds, he and the defendant both urged, that under the provisions of Act No. 5 of 1870, Extra Sesssion, the court was powerless to grant the relief invoked by Behan.

On trial of the application and of the intervention, the latter was dismissed, and the writ of mandamus was granted.

As the case is not appealable, the intcrvenor, who is joined by the defendant, in an answer, lias applied to this Court for a writ of prohibition, under our supervisory jurisdiction.

As argued by defendants, our investigation must be strictly confined to the question of jurisdiction, vel non, of the lower court.

Article No. 90 of the present Constitution, which has created the supervisory jurisdiction of this Court over all inferior courts, has received judicial interpretation in several cases; and in keeping with the spirit of the Constitution, as expounded in those decisions, we shall exercise the power thus granted only in eases where the party aggrieved has no other adequate remedy, and where the act complained of is a manifest violation of a positive law.

The statute which the District Judge is charged to have ignored provides, in substance, that no court within the State shall have authority or jurisdiction to entertain or enforce any summary process, or proceeding, or writ, or order of mandamus against the auditing officer of the City of New Orleans, wdth a view, directly or indirectly, to compel said officer to issue and deliver any warrant for the payment of money, or against the officer charged with the disbursement of the moneys of the City of New' Orleans.

A close attention to the language of the statute discloses that the intention of the legislature was not only to deprive all jiersons of that remedy, but to prohibit all courts from even entertaining any application for the remedy in the cases provided for.

It follows, therefore, that the District Court is positively denied jurisdiction or power to consider the claim set up in all such applications ; and that its plain duty was to decline to even entertain the proceeding.

It has often been held, and it is in fact elementary, that the writ of mandamus is not a writ of right, and must be issued in strict conformity with law •, a fortiori it cannot be applied for or granted in violation of law.

The Articles of the Code of Practice providing general rules, governing writs of mandamus to enforce the performance of ministerial duties, must be construed with reference to this, a later statute, making exceptions as to the special officers in question, in the matters provided for.

The judgment sought to be executed by Behan, the consideration of that judgment and all causes of action which are made the basis of his proceeding, having arisen since the enactment of the- statute, fall clearly within its provisions, and must be governed thereby. See State ex rel. Strauss vs. Brown, 30 An. 79.

Our conclusion is, therefore, that the-defendant Judge -liad no jurisdiction, power or authority to-grant the writ of mandamus applied for by Behan, and that the Relator herein is entitled to the relief which he asks at our hands.

It is, therefore, ordered, that the alternative writ of - prohibition granted herein be made perpetual, and that the defendant Judge be prohibited from enforcing the writ of mandamus granted by him in the case of the State ex rel. J. Henry Behan vs. W. E. Huger, Administrator of Public Accounts. Costs to be paid by defendants in this proceeding-.

Levy, J., absent.  