Bell v. First Judicial District Court

• Decision Date: 03 August 1905
• Citation: 81 P. 875,28 Nev. 280
• Parties: BELL et al. v. FIRST JUDICIAL DISTRICT COURT et al. No. 1, 680.
• Court: Nevada Supreme Court

81 P. 875

28 Nev. 280

BELL et al. v. FIRST JUDICIAL DISTRICT COURT et al. No. 1, 680.

Supreme Court of Nevada

August 3, 1905

Prohibition on petition of William Bell and others, against the district court of the First judicial district, in and for the county of Esmeralda, and Hon. M. A. Murphy, judge thereof. Writ allowed.

P. M Bowler, Jr., for petitioners.

Geo. S Green, for respondents.

NORCROSS J.

This is an original proceeding to obtain a writ of prohibition restraining and prohibiting respondent, the district court above named, and Hon. M. A. Murphy, judge thereof, from further proceeding, other than to make an order of dismissal in a certain action in said court pending, entitled "A. Summerfield, Complainant, v. William Bell, J. E. Davidson, and James Russell, Defendants. Accusation." The issuance of the writ is demanded upon the grounds, first, "that said court has no jurisdiction of the parties, or the subject of said action;" second, "that said court has no jurisdiction of the parties, or of the subject of said action in the manner and form therein assumed to be exercised by said court."

The defendants in said action, petitioners herein, are regularly elected, qualified, and acting officers of the said county of Esmeralda as follows: The said William Bell and James Russell are the justice of the peace and constable, respectively, of Goldfield township, and the said J. E. Davidson is the district attorney of the county. The action sought to be prohibited by this proceeding was instituted by the complainant, A. Summerfield, a citizen and taxpayer of said county, for the purpose of removing said petitioners from office for alleged malfeasance. The proceeding was brought under the provisions of sections 59 to 62 of an act entitled "An act relating to elections," approved March 12, 1873 (Laws 1873, p. 209, c. 121; Comp. Laws,§§ 1642-1645), which sections read as follows:

"Sec. 59. If any person now holding or who shall hereafter hold any office in this state, who shall refuse or neglect to perform any official act in the manner and form as now prescribed by law, or who shall be guilty of any malpractice or malfeasance in office, shall be removed therefrom as herein prescribed.

"Sec. 60. Whenever any complaint in writing, duly verified by the oath of any complainant, shall be presented to the district court, alleging that any officer within the jurisdiction of said court has been guilty of charging and collecting any illegal fees for services rendered or to be rendered in his office, or has refused or neglected to perform the official duties pertaining to his office as prescribed by law, or has been guilty of any malpractice or malfeasance in office, it shall be the duty of the court to cite the party charged to appear before him on a certain day, not more than ten nor less than five days from the time when said complaint shall be presented, and on that day, or some subsequent day not more than twenty days from that on which said complaint is presented, shall proceed to hear, in a summary manner, the complaint and evidence offered by the party complained of, and if, on such hearing, it shall appear that the charge or charges of said complaint are sustained, the court shall enter a decree that said party complained of shall be deprived of his office, and shall enter a judgment for five hundred dollars in favor of the complainant and such costs as are allowed in civil cases.

"Sec. 61. It shall be the duty of the clerk of the court in which such proceedings are had to transmit, within three days thereafter, to the Governor of the state, or board of county commissioners (as the case may be) of the proper county, a copy of any decree or judgment declaring any officer deprived of any office under this act; and it shall be the duty of the Governor or such board of county commissioners (as the case may be) to appoint some person to fill said office until a successor shall be selected or appointed and qualified; and it shall be the duty of the person so appointed to give such bond and security as are prescribed by law and pertaining to such office.

"Sec. 62. In case judgment of the district court, as herein provided, shall be against the officer complained of, and an appeal taken from the judgment so rendered, the officer so appealing shall not hold the office during the pending of such appeal; but such office shall be filled as in case of a vacancy."

It is contended by petitioners that the foregoing sections of the act, under which the said proceedings were instituted, are violative of the State Constitution, and hence void, and that therefore the court had no jurisdiction in the premises. Upon the other hand, counsel for respondent takes the position that prohibition is not an appropriate remedy to determine the constitutionality of an act or provisions thereof, and that therefore this proceeding should be dismissed, without passing upon the merits of the legal questions presented. Unquestionably this proceeding would be improper, if petitioners have a plain, speedy, and adequate remedy in the ordinary course of law; but no authorities are cited by counsel that go so far as to hold that an appellate court will refuse to grant relief by prohibition simply because to do so would necessitate the passing upon a constitutional question. In the case of Walcott v. Wells, 21 Nev. 51, 24 P. 367, 9 L. R. A. 59, 37 Am. St. Rep. 478, which was a proceeding in prohibition, it is manifest from the majority opinion of the court that a constitutional question would have been passed upon if necessary to a determination of the case, while the dissenting opinion of Belknap, J., was predicated upon his view of the unconstitutionality of the act therein brought in question. The case of Ex parte Roundtree, 51 Ala. 42, referred to in the Walcott v. Wells Case, supra, was a proceeding wherein a writ of prohibition was issued to the judge of the Fourth judicial circuit of Alabama to prohibit him from proceeding in a case in the law and equity court of Morgan county; the issuance of the writ being based upon the unconstitutionality of the act creating the court. Among other cases in which the constitutionality of statutes have been passed upon in proceedings in prohibition may be cited the following; Levy v. Superior Court, 105 Cal. 600, 38 P. 965, 29 L. R. A. 811; Connecticut River R. Co. v. Franklin Co., 127 Mass. 50, 34 Am. Rep. 338; McInerney v. Denver, 17 Colo. 302, 29 P. 516; Sweet v. Hulbert, 51 Barb. (N. Y.) 312. In the case of Walcott v. Wells, supra, this court said: "The writ of prohibition is an extraordinary remedy, and should be issued only in cases of extreme necessity. Before it should issue, it must appear that the petitioner has applied to the inferior tribunal for relief. The object of the writ is to restrain inferior courts from acting without authority of law in cases where wrong, damage, and injustice are likely to follow from such action. It does not lie for grievances which may be redressed, in the ordinary course of judicial proceedings, by appeal. It is not a writ of right, but one of sound judicial discretion, to be issued or refused according to the facts and circumstances of each particular case. Like all other prerogative writs, it is to be used with caution and forbearance, for the furtherance of justice, and securing order and regularity in judicial proceedings in cases where none of the ordinary remedies provided by law are applicable. The writ should not be granted, except in cases of usurpation or abuse of power, and not then, unless the other remedies provided by law are inadequate to afford full relief. If the inferior court has jurisdiction of the subject-matter of the controversy, and only errs in the exercise of its jurisdiction, this will not justify a resort to the extraordinary remedy by prohibition."

It appears from the petition herein that petitioners applied to the lower court for relief, and that the questions herein presented were urged upon that court upon motions to quash and to dismiss the proceedings. If the proceedings in the lower court would be void because of the unconstitutionality of the sections of the act under which it is instituted, I think it is a case for the proper interference of this court by prohibition, unless it appear that there is another plain speedy, and adequate remedy. If decision is rendered against petitioners in the proceeding in the lower court, a decree is entered removing them from office, and judgment for $500 in favor of the complainant may be imposed, as well as costs, as in civil cases. If appeal is taken from such judgment, no matter how meritorious the appeal may be, there is not way by which the judgment, at least so far as the decree of removal is concerned, may be stayed pending the...