In re Petition of Green Mountain Post No. 1
| Citation | 73 A.2d 309,116 Vt. 256 |
| Decision Date | 02 May 1950 |
| Docket Number | 1765. |
| Parties | IN RE PETITION OF GREEN MOUNTAIN POST NO. 1 |
| Court | United States State Supreme Court of Vermont |
February 1950.
PETITION FOR WRIT OF PROHIBITION, Washington County.
The petition is dismissed and the order staying the execution of the order of the Vermont Liquor Control Board is vacated.
N Henry Press and Harold C. Sylvester for petitioner.
Clifton G. Parker, Attorney General, and Frederick G. Mehlman, Deputy Attorney General, for petitionee.
Present: SHERBURNE, C. J., JEFFORDS, CLEARY, ADAMS and BLACKMER, JJ.
This is a petition for a writ of prohibition brought to this Court by Green Mountain Post No. 1, The American Legion, Department of Vermont, whereby it is sought to prohibit the Vermont Liquor Control Board from suspending the first and third class licenses of the petitioner to sell malt and vinous beverages and intoxicating liquors. The board filed an answer. A. commissioner was appointed who heard the evidence and filed findings of fact.
It is necessary to refer only to some of the facts set forth in the petition that were admitted by the answer and found by the commissioner. It appears that the petitioner operates a club, so-called, in its Legion Home in the City of St. Albans; that it holds a first class license to sell malt and vinous beverages and a third class license to sell intoxicating liquors; that the Vermont Liquor Control Board issued and promulgated certain rules and regulations directed to clubs, particularly No. 35 D, as follows:-- ; that the Board notified the petitioner that its licenses were suspended for a period of fifteen days because of a violation of said regulation No. 35 D.
Before the effective date of the suspension order the petitioner brought this petition praying that a writ of prohibition issue from this Court prohibiting the Liquor Control Board from putting the order into effect. Execution of the order was stayed until final disposition of the petition.
The grounds set forth in the petition for issuing the writ are in substance:-- That the Liquor Control Board acted without jurisdiction and beyond the authority conferred upon it by the statutes in the promulgation of regulation No. 35 D and beyond the intent of the Legislature in its authorization for the issuance of rules and regulations by the Board governing the control of intoxicating liquors; that regulation No. 35 D is entirely discriminatory and arbitrary in its application and effect as to regulation of clubs as a whole in the state; that the statutes do not give jurisdiction to the Board to regulate and control the petitioner in the manner provided by regulation No. 35 D and that the suspension order was issued without a proper hearing. In short, the petitioner challenges the authority and jurisdiction of the Board on constitutional and statutory grounds.
Prohibition is a prerogative writ known to the common law. It is directed against unwarranted assumption of jurisdiction or excesses of it. It is a remedy of exigency. Like all other prerogative writs, it is to be used for the furtherance of justice and to secure order and regularity in judicial proceedings and issued only in cases of extreme necessity. 42 Am Jur Prohibition, § 6; Anno 77 A.L.R. 246. The phrase in V. S. 47, § 1372 "that may be necessary for the furtherance of justice and the regular execution of the law" is merely declaratory of the common law and does not extend the use of the writ beyond its limits. Gould et als v. Parker, Att'y. General et al, 114 Vt. 186, 188-190, 42 A.2d 416, 159 A.L.R. 622, and cases cited.
It lies not only to courts eo nomine but also to inferior ministerial bodies possessing incidentally judicial powers, such as are known as quasi-judicial functions. Town of Springfield v. Newton et als, 115 Vt. 39, 43, 50 A.2d 605.
It is a legal remedy, provided by the common law, extraordinary in the sense that it is ordinarily available when the usual and ordinary proceedings at law or in equity are inadequate to afford redress, prerogative in character to the extent that it is not always demandable of right to prevent courts or other tribunals, officers or persons from usurping or exercising a jurisdiction with which they have not been vested by law. 50 CJ Prohibition, § 1.
Being a prerogative or extraordinary writ, it does not lie, as a rule, for grievances which may be redressed in the ordinary course of judicial proceedings by the remedies provided by law. 42 Am Jur, Prohibition, § 5. Prohibition will not issue where there is an adequate remedy by injunction, 50 CJ, Prohibition, § 65, note 39. Ordinarily prohibition will be denied where other remedies exist which, if availed of, would afford complete and adequate relief. 50 CJ, Prohibition, § 56. The general rule is that the extraordinary writ of prohibition cannot be invoked when the usual and ordinary remedies provided by law such as appeal, writ of error, writ of review, certiorari, motion for change of venue, injunction or mandamus are available and are adequate and complete. Anno. 77 A.L.R. 247; 42 Am Jur Prohibition, § 8; 22 RCL. Prohibition, § 8; Ann. Cas. 1913D, 594. Failure to resort to another recognized remedy which is available and adequate does not alter the general rule or take the case out of it. 42 Am Jur Prohibition, § 8. A. rule that prohibition will not ordinarily issue where there is another adequate remedy has frequently been applied where the writ has been sought to restrain the...
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