O'Brien v. Trousdale ( 1917 )

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.

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 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.