Bellevue Water Co. v. Stockslager , 4 Idaho 636 ( 1895 )

MOBGAN, C. J.

(After Stating the .Pacts.) — By the provisions of our statute “the writ of prohibition is made the counterpart of the writ of mandate, .... and arrests the proceedings of any tribunal, .... when such proceedings are without or in excess of the jurisdiction of such tribunal.” (Bev. Stats., sec. 4994.) “It may be issued by any court except a probate or justice's court, to an inferior tribunal, .... in all cases where there is not a plain, speedy, and adequate remedy in the ordinary course of law, .... upon the affidavit of the person benefieially interested.” (Bev. Stats., sec. 4995.) It will be seen that the writ issues only when the tribunal is about to proceed in a matter in excess of its jurisdiction. The statute, itself, it would scorn, answers every question raised by the petition. The petitioner asks that the respondent be restrained from holding court at Shoshone, or at Hailey, or at any other place, as the county seat of Logan county. The petition itself shows that the respondent is not proposing or threatening to hold court at cither of the places named, or at any other place, as the county seat of Logan county. Again, petitioner asks, also, that respondent be prohibited from holding court at the county seat of Blaine count}’, or the county seat of Lincoln county, on the ground that no such counties exist. It is among the plainest and most elementary principles of law that questions not involved in the determination of a suit should not be, and cannot be, decided therein by any court, from the highest to the lowest. The petitioner, in his petition, does not show that he has any interest whatever, greater or more than any other citizen or individual, in the question as to whether the acts creating Blaine or Lincoln county are constitutional. Nor does he show that he has any interest whatever in the determination of such question. The petitioner states that the Bellevue Water Company, •of which he is president, has a suit pending against the city of Bellevue in the county of Logan, and that it is material and necessary that said suit should be tried in said Logan county, and if such is not done that plaintiff will sustain great and irreparable inj urv by not being able to obtain a trial of said suit. Section 8 of the act creating Blaine county has the following provision: “All actions, prosecutions and legal proceedings of all kinds whatsoever now pending in either Alturas or Logan county shall be continued maintained and prosecuted in the new county of Blaine.” Blaine is an organized county, with a full corps of officers, and is, in fact, a de facto county — a de facto municipal corporation- — with a county seat at Hailey, with terms of court fixed and holden at said county seat, in said county. Whether constitutional or not, all the judicial machinery is in full and complete operation. The suit of the petitioner, then, may be tried at Hailey. There appears no reason in the petition why it may not be as well and as speedily tried in Hailey as in Bellevue. The plaintiff has, then, a plain, ■speedy and adequate remedy at law. Where such is the case the writ cannot issue. (Bev. Stats., see. 4995.)

All the authorities quoted in the ease of the petition for writ of mandate, on this branch of the ease, apply with equal force and pertinency to the application for writ of prohibition. No •statement is made in the petition which indicates in the slightest degree that the constitutionality of the acts creating Blaine and Lincoln counties is in any way involved in the suit of petitioner against the city of Bellevue. The constitutionality of these acts not being involved in the said action in any way whatever, it is a matter not even collateral to the pending application. If it were a collateral issue, it could not be determined, in determining this application, as the constitutionality of an act cannot be determined when it is only collateral to a pending suit, and, more especially, when the pending action is an application for writ of prohibition. All the authorities upon this point, quoted in the application for writ of mandate, apply again with equal force and pertinency in the present application. Any opinion rendered in regard to the constitutionality of these •acts would be obiter dictum simply, not binding on this court nor any other. The writ of prohibition will not issue where the act to be restrained has already been performed, even where the act has been performed during the pendency of the application for the writ, for the reason that the writ would be without any effect whatever. (San Jose Sav. Bank v. Sierra Lumber Co., 63 Cal. 179; More v. Superior Court, 64 Cal. 345, 28 Pac. 117; 19 Am. & Eng. Ency. of Law, 273.) The terms of court, both in Blaine and Lincoln counties, sought to be restrained, have already been held.

Petitioner further alleges that the said action of the district ■court will be highly injurious to the residents and taxpayers of Logan county, and will be injurious to the Bellevue Water Company, plaintiff herein, in that it will prevent this plaintiff from having a trial of said cause before a tribunal having a legal existence. In what respect the holding of a term of court in Hailey will be injurious to the residents and taxpayers of Logan ■county is not shown, and we cannot assume or presume any injury not alleged or shown. If the plaintiff should obtain a judgment against the city of Bellevue in Blaine county, and at Hailey, it would be as valid and binding as if it were obtained at Bellevue, as the petition states facts which show that Blaine-county is fully organized as a municipal corporation, and is, as was said above, a de facto county, and the acts of the court while holding its session at Hailey are as valid and binding upon litigants as if held in any other county within its jurisdiction. In short, it does not appear that the constitutionality of the acts creating Blaine county or Lincoln county is involved in any way in petitioner’s suit‘against the city of Bellevue. It does appear that the petitioner has a plain, speedy and adequate remedy at law. It does not appear that the district court of the fourth judicial district is proceeding, or 'is about to- proceed, in any way in excess of its jurisdiction. The demurrer must be sustained, and the writ denied, and it is so ordered.

Sullivan and Huston, JJ., concur.