Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-08-10

Vas proceeding IN prohibition, It |
Is manifest from the majority opinion !
IF the court that q constitutional quest
ion would have been passed upon If |
necessary to q determination Of the
case: while the dissenting opinion Of
Belknap, j., was. predicated upoE his
view OF the uncOnstitutionality Of the
act therein brought IN question. The
case of Elk parte Roundtree 81 Ala.
40, referred to in the Walcott We Wells
a writ of prohibition was issued to
the Judge of the Fourth Judicfnf Cir
cult of Alabama to prohibit him from
proceeding in case in the Law and
Equity Court of Morgan County, the
issuance of the writ being based upon
the unconstitutionality of the act Gre
ating the court Among other cases
in which the constitutionality Of stat
utes have been passed upon in proceed
ings in prohibition, may be cited the
following. Levy VS. Superior Court
105 Cal. 600; Connecticut River R. Co.
VS. Franklin Co, 127 Mass. so; Nc
Inerney VS. Denver II Col. So, Sweet
VS. Hubert 81 Barb On. y.) e..
In the case Of Walcott VS. Wells,
supra, this Court said:
"The writ of prohibition is an extra
ordinary remedy, and should be issued
only in cases of extreme necessity.
Before it should issue, it must appear
that the petitioner has amp . the
inferior tribunal for relief Tire object
of the writ is to restrain inferior courts
from acting without authority of law
in cases where wrong damage and in
justice ore likely to follow from such
action. 1t does not lie for grievances
which may be redressed in the -ordi-
nary course of judicial proceedings,
hy appeal. It is not a writ OF right
but one of sound judicial discretion, to
be issued or refused according to the
facts AM circumstances of each par
ticular case. Like all other preroga-
tive writs, it is to be used with caution
and forbearance, for the futherance Of
Justice, and securing order and resu-
larity in judicial proceedings in cases
where none of the ordinary remedies
provided by law are applicable. The
writ should not be granted except in
cases CT usurpation or abuse of power
and not then, unless the other rem
edies provided by law are Inadequate
to afford full relief. If the inferior
court has jurisdiction of the subject
matter of the controversy and only
errs in the exercise of its jurisdiction,
this will not justify resort to the
extraordinary remedy by prohibition =
1t appears from the petition herein
that petitioners applied to the lower
court for relief. and that the questions
herein presented were urged upon that
court upon motions to quash and to
dismiss the proceedings. If the pro-
ceedings in the lower court would be
void because Of the unconstitutionality
of the sections of the Act under which
it is instituted. / think it is case
for the proper interference of this
Court by prohibition. unless it appear
that there is another plan, speedy
and adequate remedy.
If decision is rendered against petit
TONERS in the proceeding in the lower
court a decree is entered removing
them from Office, and judgment for
five hundred dollars in favor Of the
complainant may be imposed as well
as costs as in civil cases. If appeal
is taken from such Judgment, no mat
ter how meritorious the appeal may
be, there is no way by which the judg-
ment. at least SO far as the decree
of removal is concerned may be stay
ed pending the appeal, for the statute
particularly provides that an appellant
"shall not hold the Office during the
pending of such appeal Petitioners
are charged with gross misconduct,
acts which are cognizable as crimes
and punishable as such. in fact NAL
feasance in office itself has all the
attributes of crime. These accusar-
ions. gave as they are. are not, under
the sections quoted, required to be
made under the solemnity of an in
vesfigation Of a grand jury and pre-.
sented by a body of that character
but may rest upon the accusation Of
'sany complainant" After summary
hearing and a judgment and decras
which may impose a great financia
hardship, the accused is deprived O
holding Office and of receiving its
emoIuments pending the appeal ant
the duties of the Office are performed
and the salary enjoyed by anothe-
person appointed as in the act pro
vided. Not only this, but in case
like that of the District Attorney, his
appointed successor may become his
, legal prosecutor
If the entire proceedings are with
out authority in law and void becaus
of the unconstitunality Of the sect
), ions Of the act providing for this mode
of procedure, certainly the remedy e
be obtained by the slow process o
appeal, which could only follow vain
fruitless and perhaps expensive trial
could not be considered an adequate
remedy. But more injurious to the
defendant than loss of office an
money would be the obloquy fastene.
upon him by such decree, which
an appeal in such case could no
remedy. 1t is hard to conceive OF
greater legal wrong which might b
, imposed upon person charged WITT
a grave and serious offense, thanto con