State ex rel. Bellingham v. Abrahamson, 98 Wash. 370,

 370    STATE EX REL. BELLINGHAM v. ABRAHAMSON.
                Opinion Per HOLCOMB, J.           98 Wash.

      [No. 14450. Department Two. October 6, 1917.]

THE STATE OF WASHINGTON, on the Relation of Thomas H.
     Bellingham et al., Plaintiff, v. JOHNSON AUGUST
           ABRAHAMSON, et al., Respondents. «1»

      STATE EX REL. BELLINGHAM v. ABRAHAMSON.      371
 Oct. 1917          Opinion Per HOLCOMB, J.

Laws of 1917, p. 2, and proceeds against about 85,000 acres
and several hundred parties. By that chapter, the right
of eminent domain is extended to Pierce county, as the agent
of the state, for the purpose of condemnation and
appropriation of such land in the county as shall be found to be
necessary, and to donate and convey the same to the United States
for a permanent mobilization, training and supply station
for any and all such military purposes, including supply
stations, the mobilization, distribution and training of the
United States army, state militia, or other military
organizations, etc.; conferring on such county the power of eminent
domain for the purposes, and providing procedure therefor.

The act provides that it shall be discretionary with Pierce
county, as petitioner, to join all parties in one proceeding,
or in one or more proceedings as may be determined by its
board of county commissioners or attorney for the county,
to condemn and acquire all the land that the secretary of
war shall select for the purposes mentioned. It is further
provided that, in proceedings to appropriate, the county
commissioners shall present to the superior court of the
county or the judge thereof a petition in which the land
and other property sought to be appropriated shall be
described with reasonable certainty, and setting forth the name
of each and every owner, etc., as far as the same can be
ascertained from the proper records, and praying that a jury
be impaneled to determine the compensation to be paid in
money to such owner or owners, etc. Section 10 of the act
provides for notice and prescribes the contents thereof, to
be served upon each and every person named therein as
owner, encumbrancer, tenant or person otherwise interested
therein; the manner of service and the proof thereof to be
made to the court. Section is provides that, at the time
and place appointed for hearing the petition, and upon
certain proof that the parties interested in the land have been
duly served with notice as prescribed, the court shall be
satisfied by competent proof that the contemplated use for which

 372    STATE EX REL. BELLINGHAM v. ABRAHAMSON.
                Opinion Per HOLCOMB, J.           98 Wash.

the land, real estate or other property sought to be
appropriated is really a public use, the court or judge shall make
an order impaneling the jury; that such jury may be the
same jury as summoned for the trial of ordinary civil
actions before the court, or the court may in its discretion issue
a venire to summon as jurors such number of qualified
persons as the court shall deem sufficient. Section 14 prescribes
the method of trial, and that the jurors at such trial shall
make a proper and separate assessment of damages which
shall result to any person, corporation, county, or the state,
or to any municipal or public corporation or other party by
reason of the appropriation and use of such land, etc., and
shall ascertain, determine and assess the amount of damages
to be paid to each owner or owners, respectively, and to any
tenant, encumbrancer or others interested for the taking and
injuriously affecting such land.

It further provides that, in case a jury is waived as in
other civil actions in courts of record in the manner
prescribed by law, the compensation shall be ascertained and
determined by the court and judge thereof, and the proceedings
shall be the same as in the trials of issues of fact before
the court. Section 15 provides that any final judgment or
judgments rendered upon any findings of any jury or juries,
or upon any findings of the court in case a jury be waived,
shall be final and conclusive unless appealed from, and no
appeal from the same shall delay the proceedings nor deprive
the county of the right to possess{on of the property
condemned, if the county shall pay into court for the owners and
parties interested, as directed by the court, the amount of
the judgment and costs. Section 16 provides for taking
immediate possession under order of the court of the land
condemned and appropriated, where the award of the jury or
the court, together with costs, have been paid to the person
entitled thereto, or into court for his benefit. Section 19
provides that, except as otherwise in the act provided, the
practice and procedure under the act in the superior court,

      STATE EX REL. BELLINGHAM v. ABRAHAMSON.      373
 Oct. 1917          Opinion Per HOLCOMB, J.

in relation to the taking of appeals and the prosecution
thereof, shall be the same as in other civil actions, but that
appeals from any judgment must be taken within thirty days
from the date of filing the judgment appealed from.

It will be observed, by reading the act in question, that it
does not provide that the different landowners are entitled
to separate jury trials as a matter of right, but it does
provide that the county may proceed by one or more proceedings
to condemn and acquire the land and assess the damages.
Having proceeded by two petitions, one of which is now
before the superior court for disposition, and one jury having
been impaneled to try the issues involved therein, it is
contended by relators that respondents are proceeding without
jurisdiction, or in excess of jurisdiction, in providing for two
juries to hear and determine the issues involved in the case
now before the trial court, and that the act in question not
having so provided, the trial court has no discretion, but
must of necessity proceed with but one jury. It is true the
act is dissimilar from chapter 158, Laws 1907, p. 1916 (Rem.
& Bal. Code, SS 7768 et seq.), enabling cities to exercise the
right of eminent domain and providing therein for one
proceeding in each instance if desired, but float any defendants
or parties in interest might upon demand, and if the court
should deem proper, have separate juries impaneled to fix
compensation and assess damages to be paid to one or more
of such defendants or parties in interest.

The application herein, while in form one for writ of
mandate, is in reality an application for a writ of prohibition.
It seeks, in effect, to prohibit respondents from proceeding
with more than one jury in the trial of condemnation cases
now before it; but whether considered as an application for
prohibition or mandate, the result sought is the same, for
one is the counterpart of the other under our statute.

The answer of respondents admits the intention to impanel
two juries to try the matters, and avers it to be a matter of
economy of time and money and of convenience to all parties,

 374    STATE EX REL. BELLINGHAM v. ABRAHAMSON.
                Opinion Per HOLCOMB, J.           98 Wash.

and for the purpose of expediting the proceedings to final
determination, lessen the burden on the juries, and insure full,
fair and adequate consideration of the facts, and hence a fair
and impartial trial to all parties. It is also alleged that the
landowners who had appeared to defend the proceedings were
in court in great numbers or represented by counsel, when
the intention to impanel two juries was announced, and made
no objection thereto, but apparently acquiesced. It is also
alleged that the trial court will submit all undefended
appropriations which may be submitted to a jury to the first jury
impaneled, so that there will be no question arise as to the
regularity and legality of the impaneling of the jury which
shall pass upon the cases of such defaulted parties. It is the
intention of the trial court to try the matter in groups of
twenty-five or more tracts of land, or less if desired, at the
convenience and selection of the county and its attorneys, so
that no great inconvenience or disadvantage to the petitioner
or its attorneys will occur and the juries may be better able
to pass upon the facts involved.

We are not satisfied as to whether, under the statutes
before us for the condemnation and assessment of damages of
the real estate required for the army post purposes, there is
any discretion vested in the trial court to have more than
one jury try the question of compensation and damages
under one petition, against the objection of the petitioner, the
other parties for whose benefit the constitution guarantees
trial by jury not objecting nor complaining; or whether, if
error, it would be presumed to be prejudicial to any party.
But we are convinced that, the court having jurisdiction of
the person and subject-matter, prohibition does not lie to
prevent the threatened erroneous exercise of that
jurisdiction. State ex rel. Lewis v. Hogg., 22 Wash. 646, 62 Pac.
143. In that case, there was laid down the principle that

"The writ of prohibition will not be issued as of course,
nor because it may be the most convenient remedy. Nor will
it be allowed to take the place of an appeal, or perform the

      STATE EX REL. BELLINGHAM v. ABRAHAMSON.          375
 Oct. 1917          Opinion Per HOLCOMB, J.

office of a writ of review. It is a preventive remedy, and as
such is bound by rigid rules, and is only issued in cases of
extreme necessity. The remedy is employed only to restrain
courts and inferior tribunals exercising judicial functions
from acting without, or in excess of their jurisdiction; and,
if the court or tribunal sought to be restrained has
jurisdiction of the subject-matter in controversy, a mistaken
exercise of its acknowledged powers will not justify the issuance
of the writ. Stated in another way, 'it matters not whether
the court below has decided correctly or erroneously; its
jurisdiction being conceded, prohibition will not go to
prevent an erroneous exercise of that jurisdiction.' High,
Extraordinary Legal Remedies, SS 772. It is also a general
rule that the writ will issue only when it is made to appear
that the party aggrieved has applied in vain to the inferior
tribunal for relief, and then only when there is no other plain,
speedy, or adequate remedy in the ordinary course of law."

Again, in State ex rel. Prentice v. Superior Court,
86 Wash. 90, 149 Pac. 821, we announced that,

"Where the superior court has jurisdiction of the
subject-matter in controversy, prohibition will not lie, where
there is an adequate remedy by appeal. The writ is not issued to
prevent the commission of mere error, nor to take the place
of an appeal, or perform the office of a writ of review for
the correction of error. The writ will only issue to inferior
courts where they are proceeding, or threaten to proceed,
without, or in excess of, their jurisdiction."

Mandamus can only be issued where the law especially
enjoins the performance of any duty resulting from an official
trust or station, and then only when there is no other plain
and adequate remedy. Paul v. McGraw, 8 Wash. 296, 28
Pac.

The adequacy of the remedy by appeal or in the course
of law is the test in all cases as to whether mandamus will
lie, irrespective of the question of jurisdiction or lack of
jurisdiction. State ex rel. Townsend Gas & Elec. Light Co.
v. Superior Court, 20 Wash. 502, 55 Pac. 988; State ex
rel. Washington Dredging & Imp. Co. v. Moore, 21 Wash. 629,
59 Pac. 505; State ex rel. Miller v. Superior Court, 40

 376    STATE EX REL. BELLINGHAM v. ABRAHAMSON.
                Opinion Per HOLCOMB, J.           98 Wash

Wash. 555, 82 Pac. 875, 111 Am. St. 925, 2 L. R. A. (N. S.)
395. Mandamus will not lie to compel action by the superior
court where there is an adequate remedy by appeal.
State ex rel. Hibbard v. Superior Court, 21 Wash. 681, 59
Pac. 505; Scott v. Bourn, 18 Wash. 471, 43 Pac. 372; State
ex rel. Stratton v. Tallman, 25 Wash. 295, 65 Pac. 545;
State ex rel. Stratton v. Tallman, 29 Wash. 817, 69 Pac.
1101.

In the case at bar, it is manifest that the superior court
is proceeding in the exercise of its general jurisdiction, and
jurisdiction in a subject-matter undeniably conferred
specifically by positive legislation, and it is admitted that it had
acquired jurisdiction of the persons of all the respondents
against whom relaters were proceeding. In such case, neither
mandamus nor prohibition will lie to correct or prevent a
threatened error in procedure in the progress of the trial,
at least where there is an ample and adequate remedy in the
ordinary course of law by appeal. It is idle to say that to
permit respondents to proceed in the threatened manner
would cause irreparable injury to Pierce county. The
statutes under consideration provide for the review of all errors
in the proceedings by appeal by any party, and provides for
the protection of the rights of Pierce county, as the
condemner, during the pendency of any appeals. There is,
therefore, an adequate remedy by appeal reserved for Pierce
county, and no other proceeding to correct errors or
threatened errors within the jurisdiction of the trial court is
available to it.

The writ is therefore denied.

ELLIS, C.J., WEBSTER, and PARKER, JJ., concur.