Rust v. Stewart

Prohibition — Does not Lib 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, hut 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. 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 tbe 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 Pae. 829.) This is a special preceding 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 Pae. 829; Kirby v. Superior Court, 68 Cal. 604, 10 Pac. 119; Havemeyer v. Superior Court, 84 Cal. 327, 18 Am. St. Pep. 192, 24 Pae. 121; Sweet v. Hul-bert, 51 Barb. (N. Y.) 315; People v. Nichols, 18 Hun, 538; Connecticut River R. Co. v. Franhlin 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 PI. & Pr. 1131.) 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. (Will-man v. Court, 4 Idaho, 11, 35 Pac. 692; Agassiz v. Court, 99 Cal. 101, 27 Pac. 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 Pac. 747; State v. Jones, 2 Wash. 662, 26 Am. St. Rep. 897, 27 Pac. 452; State v. Court, 21 Wash. 631, 59 Pac. 505; Mines etc. v. Court, 91 Cal. 101, 27 Pae. 533; People v. Hills, 5 TJtah, 410, 16 Pae. 405; Mancello v. Belrude (Cal.), 11 Pae. 501; Witcher v. Walkins, 11 Colo. 548, 19 Pac. 541; Walker v. Court (Ariz.), 35 Pac. 983.) 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 Pac. 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 Pae. 769, 45 Pac. 823, 1047; City v. Hevren, 126 Cal. 226, 58 Pac. 530; Dawson v. Eustace, 148 Ill. 346, 36 N. E. 87; Chicago B. Co. v. Minnesota, 134 TJ. S. 418, 10 Sup. Ct. Rep. 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 Pac. 617; Wilterding v. Green, 4 Idaho, 773, 45 Pae. 134.)