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O'Brien v. Commissioners

December 31, 1917

STEVE O'BRIEN, FRANK TESSIER, W. R. STOPER, C. CECCARELLI, H. LOOSE, ALVIN HENDRICKSEN; JOHN GALLAGHER AND GEORGE BROWN, TRADING AS GALLAGHER & BROWN; C. AND L. AROBIO, TRADING AS C. & L. AROBIO; BETERLRIDE AND BILBOA, TRADING AS BETERLRIDE & BILBOA; GEORGE BODINE AND CHARLES PEFFERLING, TRADING AS BODINE & PEFFERLING; AND JOHN RAE AND C. STACY, TRADING AS RAE & STACY, PETITIONERS, V. A. F. TROUSDALE, W. L. BRACKETT, AND W. H. COOPER, COMPRISING THE BOARD OF COUNTY COMMISSIONERS, IN AND FOR THE COUNTY OF HUMBOLDT, STATE OF NEVADA, AND S. G. LAMB, SHERIFF OF SAID COUNTY, RESPONDENTS.


Young & Brown, for Petitioners.

Thos. E. Powell, District Attorney, for Respondents.

By the Court, Sanders, J.:

This is a petition addressed to this court by certain persons engaged in the saloon and restaurant business in the town of Lovelock, Humboldt County, Nevada, praying that this court will, in the exercise of its original jurisdiction, issue its writ of prohibition, restraining and prohibiting the county commissioners of Humboldt County, acting as a town board with reference to the

[41 Nev. 90, Page 94]

affairs and business of the town of Lovelock, and S. G. Lamb, sheriff of said county, from enforcing an ordinance passed by said board requiring licenses for the selling, serving, furnishing, or disposing of spirituous, vinous, or malt liquors, or any admixture thereof, in restaurants, dining-rooms, lunch-rooms, or other places of business where meals are sold, served, or furnished to the public in the said town of Lovelock. The petitioners aver that the ordinance in question is an illegal law and regulation affecting their business; that a failure to comply with its terms and conditions would subject them to an illegal arrest and imprisonment, and they would be deprived of their liberty without due process of law; that the petitioners have no plain, speedy, or adequate remedy at law or in equity, and unless relief be granted as prayed for, an irreparable hardship and injury will be done petitioners by the enforcement of said ordinance.

1. We issued the alternative writ in this cause upon the assumption that the ordinance complained of was in effect, but it affirmatively appears that it was not. The jurisdiction of the respondent board over the subject-matter of the ordinance is not questioned, but the petitioners, through fear or anticipation of its enforcement, now invoke the remedy of prohibition to test its validity.

“An application for a writ of prohibition before the actual commencement of an action or proceeding is premature, since there must be a cause pending before the writ will issue.” (State v. Ryan, 180 Mo. 32, 79 S. W. 429; Darnell v. Vandine, 64 W. Va. 53, 60 S. E. 996; Haldeman v. Davis, 28 W. Va. 327; Mealing et al. v. City Council of Augusta, Dudley's Reps. 221; State v. Judge, 33 La. Ann. 1284; Sherlock v. Jacksonville, 17 Fla. 93; Wood on Mandamus and Prohibition, p. 145; 32 Cyc. 628; 23 Am. & Eng. Ency. Law, 206.)

2. The writ of prohibition is not a writ of right, but one of sound judicial discretion, to be issued or refused according to the facts of each particular case. This

[41 Nev. 90, Page 95]

practice may be treated as stare decisis in this state. (Walcott v. Wells, 21 Nev. 50, 24 Pac. 367, 9 L. R. A. 59, 37 Am. St. Rep. 478.) It is justified only by extreme necessity, and not then, unless the other remedies provided by law are inadequate to afford full relief.

We are adverse to establishing the practice of encouraging applications for extraordinary remedies by anticipating that a cause will be pending, and issue the process in advance of the actual pendency of the proceeding which the writ is used to arrest. (State v. Ryan, supra.)

The alternative writ heretofore issued is vacated, and the application for a peremptory writ is denied.

It is so ordered.

McCarran, C. J., concurring:

I concur in the order and in the opinion of Mr. Justice Sanders, but I deem it proper to express my views on another phase of the question.

Petitioner by these proceedings seeks to prohibit the respondents A. F. Trousdale, W. L. Brackett, and W. H. Cooper, comprising the board of county commissioners of Humboldt County, and S. G. Lamb, sheriff of said county, from enforcing a certain ordinance providing for the licensing of certain lines of business, and from collecting the license provided for in the ordinance.

3, 4. From the view that I take in this matter, not only is the application here premature, but by these proceedings petitioner seeks to accomplish by the writ of prohibition a something for which the writ was never intended. Section 4 of article 6 of our constitution, in conferring jurisdiction upon the supreme court, among other things provides:

“The court shall also have power to issue writs of mandamus, certiorari, prohibition, quo warrantor, and habeas corpus and also all writs necessary or proper to the complete exercise of its appellate jurisdiction.”

Section 5708, Revised Laws 1912, provides as follows:

“The writ of prohibition is the counterpart of the

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writ of mandate. It arrests the proceedings of any tribunal, corporation, board, or person, whether exercising functions judicial or ministerial, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board, or person.”

It was undoubtedly the intention of the framers of the organic law to confer upon this court the right to issue the writ of prohibition as the same had been and was recognized at common law. At common law this writ issued, with but rare exception, only from the courts having common-law jurisdiction. The scope and function of the writ or prohibition at common law was to prohibit a peculiar and inferior court from assuming an unauthorized jurisdiction. The issuance of the writ was authorized only to restrain the exercise of judicial functions. (Smith v. Whitney, 116 U. S. 167, 6 Sup. Ct. 570, 29 L. Ed. 601.) In the common-law courts of England, as well as in those courts of the United States having common-law jurisdiction, it is emphatically held that the writ of prohibition will not issue to restrain or prevent the acts of an executive or ministerial officer. The function of the writ of prohibition is to prevent acts in excess of jurisdiction by a tribunal having judicial powers. The scope of the writ at common law never included the restraining of ministerial acts. (Thompson v. Tracy et al., 60 N. Y. 31.)

It is to officers exercising judicial functions and to tribunals where such functions are administered that the writ of prohibition could properly be addressed. (Ex ...


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