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

• Decision Date: 07 June 1904
• Citation: 48 S.E. 205,55 W.Va. 689
• Parties: TOWN OF HAWK'S NEST v. COUNTY COURT OF FAYETTE COUNTY et al.
• Court: West Virginia Supreme Court

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

Submitted June 4, 1904

Syllabus by the Court.

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.

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.

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 Nickell 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 the county court to revise its action by revoking the license. That would make the writ a certiorari or appeal. High, 771.

But suppose that the county court had not already acted, but was only proposing to act. Would prohibition lie? I think not. It is clear that the Constitution, in article 8, § 24, and Code 1899, in chapter 32, § 10, give the county court sole jurisdiction to grant or refuse a liquor license, with the proviso that, if the license is to be used in a town, its council must consent; and this jurisdiction is exclusive, and cannot be revised by appeal, writ of error, or supersedeas. Hein v. Smith, 13 W.Va. 358. In that case the county court had granted a permit, and it was claimed that the consent of the town was not given by the proper council; but the opinion says, "Yet the sole power is lodged with that court to act in such matters, and the law has not conferred on the circuit court power by supersedeas to revise such action of the county court." While this discretion is given by the law to that court, I find no appeal or other remedy...