Town Of Hawk's Nest v. County Court Of Fayette County

Citation55 W.Va. 689,48 S.E. 205
CourtSupreme Court of West Virginia
Decision Date07 June 1904
PartiesTOWN OF HAWK'S NEST v. COUNTY COURT OF FAYETTE COUNTY et al.

48 S.E. 205
55 W.Va. 689

TOWN OF HAWK'S NEST
v.
COUNTY COURT OF FAYETTE COUNTY et al.

Supreme Court of Appeals of West Virginia

.June 7, 1904.


PROHIBITION—WHEN LIES—LIQUOR LICENSE— ISSUANCE—REVOCATION.

1. Prohibition does not lie where the act complained of has been already done.

2. Prohibition will not lie to prohibit a county assessor from issuing a license to sell liquor.

¶ 2. See Prohibition, vol. 40, Cent. Dig. §3 3L, 32.

3. Prohibition does not lie to prevent a county court from granting license to sell liquor, or compel it to revoke a license granted without the consent of a town council.

(Syllabus by the Court.)

Petition of the town of Hawk's Nest for a writ of prohibition against the county court of Fayette county and B. E. Bare. Writ denied.

Payne & Hamilton, for petitioner.

BRANNON, J. The town of Hawk's Nest files a petition asking for a writ of prohibition against the county court of Fayette county and B. E. Bare, one of the assessors of that county, stating that McKleewee Nick-ell had made application to the council of said town for permission to obtain a license to sell liquor, and the council refused his application; that the county court, notwithstanding the refusal of the council to give its permit to Nickell, made a written order allowing Nickell to obtain such license, and accepted a bond from him, which order had been entered in the order book of the court by the clerk, but that the record had not been signed; and that petitioner believed that the assessor would issue such license. The petition asks a writ of prohibition to forbid the assessor from issuing the license certificate, and to forbid the court from signing the record, so far as it gives leave to Nickell to obtain the license, and, if the assessor had issued the license, then to compel the county court to revoke it. We refuse the writ, for these reasons:

1. The court has acted, whatever its action may amount to. Prohibition does not lie after action has been had. Haldeman v. Davis, 28 W. Va. 324. It is "a preventive rather than a corrective remedy, " and cannot be used after the act is done. High on Extra. Remedy, 766.

2. Prohibition cannot go against the assessor. He is not a court, nor is his action judicial. This writ goes only against a judicial tribunal and judicial action. Hassinger v. Nolt, 47 W. Va. 348, 34 S. E. 728; Fleming v. Commissioners, 31 W. Va. 608, 8 S. E. 267; 2 Spell. Injunc. & Extra. Rem. 1722.

3. It is clear that we cannot by prohibition compel...

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