Rust v. Stewart

• Decision Date: 16 March 1901
• Citation: 64 P. 222,7 Idaho 558
• Parties: RUST v. STEWART, JUDGE
• Court: Idaho Supreme Court

64 P. 222

7 Idaho 558

RUST v. STEWART, JUDGE

Supreme Court of Idaho

March 16, 1901

PROHIBITION-DOES NOT LIE WHEN A PLAIN, SPEEDY AND ADEQUATE REMEDY EXISTS-WILL NOT ISSUE TO RESTRAIN A DISTRICT COURT EXCEPT IN EXCEPTIONAL CASES.-The writ of prohibition is an extraordinary remedy which issues, not as a matter of right, but in the sound discretion of the court. Prohibition may issue to restrain an inferior tribunal from exceeding its jurisdiction, but does not lie when a plain, speedy, and adequate remedy, in the ordinary course of law exists. The peremptory writ of prohibition will not issue to restrain a district court from proceeding in a certain manner in a proceeding before it where it is apparent that the action of such district court can be reviewed speedily in one of the modes prescribed by law.

(Syllabus by the court.)

An original proceeding to obtain a writ of prohibition.

Alternative writ discharged, and the peremptory writ denied. Costs awarded to the defendant.

Martin & McElroy, for Plaintiffs.

The jurisdiction of the district court is limited to a review of the proceedings before the commissioners, and that the court has no jurisdiction on appeal to try the cause anew. (16 Ency. of Pl. & Pr. 1123, and cases cited.) The author says "When the jurisdiction of an inferior court is derived from a statute prescribing the manner of procedure in an action, it may be prevented by the writ of prohibition from departing from the manner prescribed." (Anderson v Superior Court, 122 Cal. 216, 54 P. 829.) This is a special prceeding for the purpose of fixing a water rate primarily for the irrigation season of the year 1901. Either party may again have it fixed for the succeeding year. The law authorizing this proceeding is found in Session Laws of 1899, pages 384 and 385, sections 26 to 29, inclusive. The authorities are numerous to the effect that the right to appeal or for writ of certiorari is not a speedy or adequate remedy in cases of this character. (Anderson v. Superior Court, 122 Cal. 216, 54 P. 829; Kirby v. Superior Court, 68 Cal. 604, 10 P. 119; Havemeyer v. Superior Court, 84 Cal. 327, 18 Am. St. Rep. 192, 24 P. 121; Sweet v. Hulbert, 51 Barb. (N. Y.) 315; People v. Nichols, 18 Hun, 538; Connecticut River R. Co. v. Franklin Co., 127 Mass. 50, 34 Am. Rep. 338.) An appeal is inadequate when the trial on appeal is de novo. (State v. Allen, 45 Mo.App. 551; 16 Ency. of Pl. & Pr. 1131.)

W. E. Borah and John J. Blake, for Defendant.

It was never the intention or meaning, either of the common law or of the statute, that writs of prohibition or habeas corpus should take the place of appeals. The adequacy of a remedy is not to be tested by the convenience or inconvenience of the parties to a particular case. If such a rule were to obtain, the law of appeals might as well be abrogated at once. (Willman v. Court, 4 Idaho 11, 35 P. 692; Agassiz v. Court, 90 Cal. 101, 27 P. 50.) In the case below, the petitioner was testing the jurisdiction of the police court by the writ, but it was said: "If the petitioner should be convicted in the police court, he will have a plain, speedy and adequate remedy at law by an appeal to the superior court." (Strouse v. Police Court, 85 Cal. 49, 24 P. 747; State v. Jones, 2 Wash. 662, 26 Am. St. Rep. 897, 27 P. 452; State v. Court, 21 Wash. 631, 59 P. 505; Mines etc. v. Court, 91 Cal. 101, 27 P. 532; People v. Hills, 5 Utah 410, 16 P. 405; Mancello v. Belrude (Cal.), 11 P. 501; Witcher v. Walkins, 11 Colo. 548, 19 P. 541; Walker v. Court (Ariz.), 35 P. 982.) There can be no question but that, under the general law of the state, upon an appeal being taken, the parties would be entitled to a trial anew. (Sess. Laws, 1895, p. 50; Fisher v. Commissioners, 4 Idaho 381, 39 P. 552.) There was involved a provision of the irrigation district law of California, wherein it was provided that the motion for a new trial must be made on the minutes of the courts in such matters, thereby excluding the right to make it upon a statement or bill of exceptions, and it was held that this provision of the law was void. (Cullen v. Glendora Water Co., 113 Cal. 503, 39 P. 769, 45 P. 822, 1047; City v. Hevren, 126 Cal. 226, 58 P. 530; Dawson v. Eustace, 148 Ill. 346, 36 N.E. 87; Chicago R. Co. v. Minnesota, 134 U.S. 418, 10 S.Ct. 462, 702.) We claim, also, that, under our constitution and laws, the fixing of rates involves a judicial investigation. The legislature cannot, as has been held by our supreme court, fix the rates; it can only prescribe the manner of having the rate fixed. In other words, both the canal company and the consumers are entitled at some time to a judicial investigation. (Wilson v. Perrault, 6 Idaho 178, 54 P. 617; Wilterding v. Green, 4 Idaho 773, 45 P. 134.)

QUARLES, C. J. Sullivan and Stockslager, JJ., concur.

OPINION

QUARLES, C. J.

This is an original proceeding to obtain a writ of prohibition restraining the district court of the third judicial district sitting in and for Ada county, from proceeding to hear and determine, de novo, an appeal from an order made by the board of commissioners of Ada county, sitting as a board of water commissioners, fixing a maximum rate of compensation for water to be delivered during the year 1901 by the Boise City Irrigation and Land Company to the petitioners. From the petition it appears that the district court is about to and will hear and determine said appeal de novo, and will do so unless restrained by the process of this court contrary, as claimed by the petitioners, to the provisions of the act of February 25, 1899, relating to the appropriation, use, and rental of waters. (See Acts 1899, pp. 380-387, inclusive.) Section 29 of said act...