Olson v. District Court, Second Judicial Dist., In And for Davis County

• Decision Date: 06 April 1944
• Docket Number: 6589
• Citation: 147 P.2d 471,106 Utah 220
• Court: Utah Supreme Court
• Parties: OLSON v. DISTRICT COURT, SECOND JUDICIAL DIST., IN AND FOR DAVIS COUNTY, et al

147 P.2d 471

106 Utah 220

OLSON v. DISTRICT COURT, SECOND JUDICIAL DIST., IN AND FOR DAVIS COUNTY, et al

No. 6589

Supreme Court of Utah

April 6, 1944

Original proceedings by C. A. Olson, doing business as Slim Olson, against the District Court of the Second Judicial District of the State of Utah, in and for Davis County, and Lester A. Wade, one of the judges thereof, for a writ of prohibition prohibiting the District Court from proceeding in an action brought by the Trade Commission of Utah to restrain plaintiff from selling motor fuels at prices lower than the posted prices, in violation of statute.

Temporary writ of prohibition recalled, and application for permanent writ denied.

Ira A Huggins, of Ogden, for plaintiff.

Grover A. Giles, Atty. Gen., C. N. Ottosen, Deputy Atty. Gen., and John A. Hendricks, of Ogden, for defendants.

CROCKETT District Judge. WOLFE, C. J., and LARSON and McDONOUGH, JJ., concur. WADE, J., being disqualified, did not participate. MOFFAT, J., participated in the hearing but died before the publication of the opinion.

OPINION

CROCKETT, District Judge.

The plaintiff, C. A. Olson, operates a retail service station at Bountiful, Davis County, Utah. The Trade Commission of Utah, by its individual members, brought an action in the Second District Court to restrain the plaintiff from selling motor fuels at prices lower than his posted prices, alleged to be in violation of Sections 2 and 3, Chapter 69, Session Laws of Utah 1939, which law is administered by the said Trade Commission of Utah.

The plaintiff obtained a temporary writ of prohibition, prohibiting the said Second District Court from proceeding in the action. We are now asked to make the writ permanent. The principal question presented, and the one we have found to be determinative in this case, is whether or not prohibition is a proper remedy.

Prohibition is not a proceeding for general review and cannot be used as such. This court has in a great many cases considered the scope and purpose of prohibition proceedings. Broadbent v. Gibson, 105 Utah 53, 140 P.2d 939; Washington County v. State Tax Comm., 103 Utah 73, 133 P.2d 564; Furbreeders Agricultural Coop. v. Wiesley et al., 102 Utah 601, 132 P.2d 384; Utah Poultry Producers Co-op. Ass'n v. District Court, 101 Utah 93, 118 P.2d 681; Mayers v. Bronson, 100 Utah 279, 114 P.2d 213, 136 A. L. R. 698; Adolph Coors Co. v. Liquor Control Comm. et al., 99 Utah 246, 105 P.2d 181; Evans v. Evans, 98 Utah 189, 98 P.2d 703; Allen v. Lindbeck, 97 Utah 471, 93 P.2d 920; Atwood v. Cox, District Judge, 88 Utah 437, 55 P.2d 377, an opinion which thoroughly discusses this matter and lists most of the cases theretofore decided on the subject in this jurisdiction.

The origin, development and history of the writ of prohibition is treated briefly in a note at 77 A. L. R. 245, referring to Pollock and Maitland, History of English Law, Second Edition, Volume 1. It arose because a variety of courts came into being whose separate spheres of jurisdiction were not always as clear and distinct as might have been desired. If the writ was not first originated for the purpose of restricting the authority of the ecclesiastical courts, it acquired its largest use for that purpose.

Our conception of the purpose and scope of the writ of prohibition is well expressed in the case of Atwood v. Cox, supra; at page 444 of the Utah Reports, at page 380 of 55 P. 2d, the court quotes with approval the following language from 32 Cyc. 598:

"A writ of prohibition is a prerogative writ, to be used with great caution and forbearance for the furtherance of justice, and for securing order and regularity in all the tribunals where there is no other regular and ordinary remedy. The legitimate scope and purpose of the writ is to keep inferior courts within the limits of their own jurisdiction, and to prevent them from encroaching upon the jurisdiction of other tribunals."

The principle is reiterated in numerous of the cases listed above.

In addition to the purpose above mentioned, the function of the writ of prohibition has been extended, under our law, to cover situations where, even though the lower tribunal has jurisdiction, the court deems it necessary and advisable to issue the writ to prevent some palpable and irremediable injustice. But it is settled beyond dispute that if the lower court has jurisdiction, prohibition is not a proper remedy if a remedy at law is adequate. It requires but a moment's reflection to reveal that for the rule to be otherwise would make any lawsuit potentially a series of prohibition proceedings. Every act of the court from the initiation of the litigation to its conclusion could be made a separate prohibition proceeding. The proper and orderly procedure requires that when a court has jurisdiction of the suit, it should go ahead and complete the litigation. When this is accomplished, an appeal can be taken so that the appellate court may then review all alleged errors in one proceeding. This orderly process should not be interfered with, unless it is urgently necessary to prevent some palpable and irremediable injustice. Attorney General v. Pomeroy, 93 Utah 426, 73 P.2d 1277, 114 A. L. R. 726.

Just when the remedy by appeal or other proceeding is adequate may in some instances be very uncertain and controversial. In Broadbent v. Gibson, supra, Mr. Justice Wolfe discusses this problem at some length, and suggests that there might be numerous situations where the remedy by appeal may appear to be adequate, but for various considerations of public interest, public policy, a possible multiplicity of suits, irremediable injury to litigants, or other factors, it may appear to this court advisable, nevertheless, to issue a writ of prohibition. The court will take into consideration all of the facts and circumstances surrounding the litigation, including the factors just mentioned, and if it is deemed proper and necessary the writ of prohibition will issue.

It is admitted that for various reasons, this court has in some cases gone a long way in examining questions in prohibition proceedings which might have been reviewed on appeal.

In the case of Atwood v. Cox, supra, which is strongly relied on by petitioner, the basis for the application was that the accusation did not state a cause of action, and that therefore the trial court was without jurisdiction. This was an accusation against a public official who was accused of corruptly charging the Board of Education fees in excess of the maximum allowed by law, and indirectly involved the right of Mr. Atwood to his public office. A reading of page 464, Utah Report, at page 389 of 55 P. 2d, shows that the court did not consider the question of the adequacy of the remedy at law, and further stated,

"Since both parties to this proceeding have, with good reason, assumed that the question of the sufficiency of an accusation may be determined on a writ of prohibition, we shall consider the respects wherein the plaintiff here contends that the accusation is insufficient."

The question of the propriety of the prohibition proceeding was not squarely presented to the court as it is in the instant case.

In Mayers v. Bronson, supra, the writ issued because the plaintiff, in order to pursue his remedy by appeal, would either have had to forego a claimed immunity, or refuse and risk a sentence for contempt. It was properly noted that an appeal on the question of whether or not he would have to serve a jail sentence would not be adequate. In the case of Allen v. Lindbeck, supra, the court observed that the proceeding was itself quasi-criminal, and that there was an element of disrepute in it which tended to make the remedy at law inadequate; and further observed at page 482, Utah Report, at page 925 of 93 P. 2d, "* * * the defendant apparently concedes that prohibition is a proper remedy."

Coors Co. v. Liquor Control Commission, 99 Utah 246, 105 P.2d 181, was a case where it was thought that if plaintiff were left to his remedy by appeal, in order to use his claimed legal rights, he would have been compelled to hazard not only criminal prosecution but also possible forfeiture of his license to do business in the state altogether. None of these cases in any sense controvert the rule that before prohibition will issue to interrupt the ordinary processes of law, it must appear that no other remedy is adequate.

Many of the cases on prohibition turn on the question of whether or not the lower tribunal is acting without or in excess of its jurisdiction. This problem is not present in the instant case. The District Court, being a court of general jurisdiction, unquestionably has jurisdiction of the class of cases involved in this litigation and of the persons and subject matter concerned therein.

The whole inquiry appears to be: Is the plaintiff without any other adequate remedy so that unless prohibition is granted he will find himself in an irretrievable position. The fact that he will have to submit to a ruling of the lower court, and if it is adverse to him take an appeal, is no ground for prohibition.

In Construction Securities Co. v. District Court, 85 Utah 346, at page 350, 39 P.2d 707, at page 709, the rule is set out thus: "* * * some extraordinary circumstance or extreme emergency or necessity must appear such that the court ought, in the exercise of a sound discretion, to invoke this extraordinary remedy. The mere necessary delay and expense of an appeal 'ordinarily furnish no sufficient reason for holding that the remedy by appeal is not adequate or speedy. To hold otherwise is to hold that all appeals are not adequate or speedy, for all involve some delay and expense.'" Citing other Utah cases so holding; see 50 C. J. 687, 42 Am....