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
O'Brien v. Trousdale
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.
[No. 2276]
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.
[167 Pac. 1007]
1. PROHIBITION-ORDINANCE NOT IN EFIPECT.
Prohibition will .not issue to restrain the enforcement of an ordinance not in effect, since there must be a cause pending before the writ will issue.
2. Prohibition — Discretion of Court.
- 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.
3. Prohibition — Ministerial Acts.
Rev. Laws, 5708, providing that the writ of prohibition arrests the proceedings of any tribunal, etc., whether exercising functions judicial or ministerial, when such proceedings are without or in excess of jurisdiction, does not enlarge tlie writ so as to reach proceedings not of a judicial character, and it will not issue to prohibit county commissioners and county sheriff from enforcing an ordinance requiring licenses for selling, etc., liquors in restaurants, etc.
4. Coubts — Jurisdiction—Writs.
By Const, art. 6, sec. 4, conferring jurisdiction upon the supreme court to issue writs of prohibition, the intention of the framers was undoubtedly to confer the right to issue the writ as it had been recognized at common law.
5. Statutes — Construction—Adoption prom Other State.
Where the legislature of one state adopts the statute of another, the act of adoption raises the presumption that the legislature of the adopting state enacted the statute in the light of the construction that had been placed upon it in the parent state.
Original proceeding in prohibition by Steve O’Brien and others against A. F. Trousdale and others, comprising the Board of County Commissioners of Humboldt County, and S. G. Lamb, Sheriff.
Alternative writ vacated, and application for a peremptory writ denied.
Young & Brown, for Petitioners:
The state constitution gives the supreme court jurisdiction to issue writs of prohibition to inferior tribunals. In regulating this power, the legislature has granted the court jurisdiction over inferior tribunals, and specifically names "ministerial” boards. (Rev. Laws, 5708,5709; Eddy v. Board of Embalmers, 40 Nev. 329.)
Petitioners are not attempting to restrain the board of county commissioners from passing the ordinance, for that has been already done; but they are attempting to restrain the commissioners and the sheriff of Humboldt County from enforcing the terms of the ordinance, on the grounds that it is unconstitutional and the license excessive. It is unconstitutional because it deprives petitioners of their liberty. (14th Amend. Const. U. S.; Const. Nev., art. 1, sec. 8; Marymont v. Banking Board, 33 Nev. 333.)
The ordinance is unconstitutional as a police regulation, in that it imposes an unreasonable and excessive license. It is a special law designed to carry into effect police regulations regarding the sale of liquors to children and women already on the statute books. (Rev. Laws, 6842, 6848, 6506.) "Where a general law applies, no special legislation can be enacted.” (Const. Nev., art. 4, sec. 1.)
Thos. E. Powell, District Attorney, for Respondents:
Have the petitioners such an interest in the enforcement of the ordinance as to entitle them to question its validity? The enforcement of the ordinance would in no way affect the rights of petitioners, and they therefore have no interest in defeating it and cannot in this court question its legality or constitutionality. This issue has not been met by counsel for petitioners. (State v. Beck, 25 Nev. 68; Estate of Stocknoth, 7 Nev. 881; Biter v. Douglas, 32 Nev. 400, 6 R. C. L. 91.)
Prohibition is not the proper remedy for the alleged injury. The function here sought to be restrained is a ministerial and not a judicial function. Prohibition issues to prevent the exercise by a tribunal possessing judicial powers of jurisdiction in matters of which it has cognizance. (Thompson v. Tracy, 60 N. Y. 31; Ex Parte Broadlaght, 2 Hill, 367, 39 Am. Dec. 593; People v. Supervisors, 1 Hill, 195.) It is a proper remedy when the inferior court either entertains a proceeding in which it has no jurisdiction, or, having jurisdiction, it assumes to exercise an unauthorized power. (Appo v. People, 20 N. Y. 531; Thompson v. Tracy, supra; Hindman v. Colom, 46 Wash. 317.) The object of the writ of prohibition is to prevent a court of peculiar, limited, or inferior jurisdiction from assuming jurisdiction of a matter beyond its legal cognizance. It can be issued only to restrain the exercise of judicial functions. (2 Bailey on Habeas Corpus, 1378.)
The Supreme Court of California has many times decided that the legislature cannot enlarge or extend the common-law office of the writ of prohibition so as to include ministerial functions; and while the statutes of both California and Nevada (the Nevada statute being copied literally from that of California) provide that the writ of prohibition may be invoked to arrest proceedings either judicial or ministerial, all of the California decisions are to the effect that the attempt to enlarge the common-law office of the writ to include ministerial functions is unconstitutional and void. The writ of prohibition named in the constitution is the common-law writ, and it cannot be changed. {Spring Valley W. Co. v. San Francisco, 52 Cal. Ill; Maurer v. Mitchell, 53 Cal. 289; Peoples. Board, 54 Cal. 404; Camron v. Kenfield, 57 Cal. 550; Farmers’ Coop. Union v. Thresher, 62 Cal. 407; Hobart v. Tillotson, 66 Cal. 210; Havemeyer v. Superior Court, 84 Cal. 327; Harris v. Recorder’s Court, 15 Cal. App..l04; 2 Bailey on Habeas Corpus, 1378; High, Ext. Leg. Rem. 3d ed. see. 763; Low v. Crown Point M. Co., 2 Nev. 75.)
Even though there were for the petitioners no plain, speedy, and adequate remedy at law, the proper remedy, under our law and practice would be by injunction. (2 High on Injunction, 4th ed. sec. 1244; 25 Cyc. 632; Strouse v. Police Court, 84 Cal. 49; Agassiz v. Superior Court, 90 Cal. 101; Cross v. Superior Court, 83 Pac. 815; Lindley v. Superior Court, 141 Cal. 220.)
The passage of the ordinance in question is a proper exercise of police power. (6 R. C. L. 211; 8 Cyc. 1110.) The mere statement by petitioners that the ordinance is an "illegal law and regulation” is.a conclusion of law and not a statement of fact. (5 Standard Proc. 216; Knapp, Stout & Co. v. City of St. Louis, 156 Mo. 343.)
The board of county commissioners has the power to pass the ordinance in question. (Rev. Laws, 877.) This authority has been confirmed by decision of this court. (Board v. Schmidt, 39 Nev. 456.)
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 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 subj ect 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.
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.)
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 practice may be treated as stare clecisis 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.