Ex parte State ex rel. Brooks

PETERS, C. J. The application for the writ of prohibition must be denied. The petition for the writ of habeas corpus seems to be regular. It shows that Brown was “ restrained of his liberty in this State; ” and the name of the person restraining him, the place where he is restrained, and all the other necessary facts are stated. Rev. Code, §§ 4260, 4262. Upon this application, it was the duty of the circuit judge to issue a writ of habeas corpus, as he did, commanding the person restrained to be brought before him, at a proper time and place, “ to do and receive what shall then and there be considered concerning him.” Rev. Code, § 4267. This has all been properly done, and the learned judge by whom the writ was granted is proceeding to hear the application on the return of the writ. On the facts stated in the petition for the writ, the judge of the ninth judicial circuit is most clearly clothed with the amplest authority to issue the writ for the discharge of Brown, if the facts, on the return and hearing, should justify his discharge; and if not, then to remand him to the confinement or restraint of which he complains. Rev. Code, tit. Habeas Corpus, pp. 785-90. Prohibition is only granted where an officer usurps jurisdiction not authorized by law. Here, the jurisdiction of the circuit judge is undoubted; and this court cannot anticipate that he will make a wrong inquiry, or render an improper or illegal order of discharge. It may be proper to add, that Brown should not be discharged, unless his confinement is wholly without authority of law. If his confinement is merely erroneous, his remedy is by appeal, or certiorari. The application is refused.