James T. Redington, for Petitioner.
Detch & Carney, for Respondent.
This is an original proceeding in prohibition. The proceeding grows out of a state of facts, some of which are identical with those involved in the mandamus case against the same respondent (No. 1953; 34 Nev. 128.) The petitioner alleges that she made application for two certain lots to the respondent as trustee of the Goldfield townsite, which application was allowed, but that the amount assessed against said lots by the trustee was $17. Believing that said amount was largely illegal and excessive, and being so advised, she refused to pay
such amount, and the deed remains undelivered. On the 30th day of December, 1910, the trustee advertised petitioner's lots, together with others, for sale, the sale to be by public auction on the 1st day of February, 1911. It is to prohibit a sale in pursuance of this notice that this proceeding was instituted. At the time the petition was filed, this court issued a restraining order suspending further proceedings under the advertisement for sale until this proceeding was determined. Respondents has filed a motion to quash the proceedings and a demurrer to the petition, both going to the same questionwhether prohibition is an appropriate remedy.
Section 8 of the act approved February 20, 1869, as amended March 5, 1877 (Comp. Laws, 346), reads in part as follows: If all the lots, blocks, shares, or parcels of such land are not legally conveyed to the proper owners before the expiration of one year after the same shall have been passed upon by the corporate authorities or judge, or, in case of contest, within thirty days after such contest shall have been finally determined, the same shall be sold to the highest bidder, and the proceeds applied to the erection of public buildings for the benefit of such city or town, or to the construction of water-works for the purpose of conveying water into such city or town, after paying their proportionate share of the purchase money and other expenses incurred by publication and sale. The respondent is proceeding to sell under the provisions of section 8, supra. As we stated in the mandamus case, the petitioner here is not in a position to question the regularity of the original notice to claimants of lots, and hence cannot base any alleged irregularity in that notice as a ground of attack upon the validity of the notice of sale under section 8, supra.
Whether this is an appropriate case for the issuance of the writ of prohibition presents a question upon which the court has found some difficulty in reaching a conclusion. The case is sui generis. The respondent became trustee by virtue of his office as district judge under the provisions of the federal and state statutes governing the
acquisition of townsites and the disposition of lots therein to the settlers. In his capacity as said trustee the judge performs certain duties that are purely executive or ministerial, while others are in their nature judicial or quasi-judicial, in that he exercises a discretion in determining the reasonableness of certain charges, within certain fixed limitations, which he is authorized to impose. While counsel for the petitioner herein has sought to place a broader construction on the case of Jennett v. Stevens, 33 Nev. 527, decided by this court in December last, than is warranted by a reading of that opinion, we did hold that the trustee's colleague upon the district bench was without jurisdiction to compel him by mandamus to issue his deed in that particular case, for the reason that, as he was townsite trustee by virtue of his office as district judge, he was not an inferior officer within the purview of a writ of mandamus.
In that case we regarded the determination of the amount which the trustee was entitled to impose as an exercise of a duty judicial in character. Whether or not he went beyond the limitations of the statute was not a matter which his colleague on the bench could determine by a proceeding in mandamus, for the reason that the law of mandamus does not regard a person performing a duty or trust by virtue of his office as a judge as inferior to another judge of equal judicial power, though the former is not acting strictly in his capacity as judge.
The constitution of this state gives this court the power to issue writs of prohibition. There are no statutory provisions now in force regulating its exercise. It is an ancient common-law writ, and whatever functions it had at common law this court now possesses. This court in a number of cases has had occasion to issue the writ to inferior courts, and has not before had occasion to consider whether more extensive powers may be exercised under it. The general rules governing the issuance of the writ have been often stated by this court and need not be repeated here, but in every instance where this court
has heretofore had occasion to issue the writ it has been to an inferior court.
High, in his work on Extraordinary Legal Remedies, in section 762, says: The writ of prohibition may be defined as an extraordinary judicial writ, issuing out of a court of superior jurisdiction and directed to an inferior court, for the purpose of preventing the inferior ...