45 So. 723 | Miss. | 1908
delivered the opinion of the court.
On the 3rd day of August, 1907, Crittenden prepared to open a pool room in the town of Booneville. In order to carry out his purpose he procured three pool tables and rented a house in the town of Booneville for six months at a rental of $20 per month in which to begin his business. Before commencing to operate his pool room he applied for and procured a privilege license both for the state and county, and also for the municipality, paying therefor to the state and county and municipality, the sum of $90. Soon after he began operation under his license — that is to say, about the 29th day of August, 1907 —the mayor and board of aldermen convened in special session and, among others, passed the following ordinance, viz.:
“An ordinance to be entitled ‘An ordinance to suppress pool tables within the corporate limits of the town of Booneville.’
“Section 1. Be it ordained by the mayor and board of aider-men of the town that it shall be unlawful for any person or persons to operate, within the town of Booneville, any pool table for the entertainment of the general public with or without fees for same.
“Sec. 2. Any person violating the above section shall be fined in the sum of $25 for each offense, and each day on which the same is open shall constitute a separate offense.
*279 “Sec. 3. This ordinance shall take effect and be in force from and after its passage.”
The town of Booneville is operated under the Code chapter on “Municipalities.” Immediately after the passage of this ordinance, Crittenden was arrested and fined $25 for running a pool table in violation of same. He appealed to the circuit court, and again opened his pool room, and was again arrested and fined on five different days. In fact, after, the passage of the ordinance, every time he undertook to conduct his pool room he was arrested and fined. Afterwards he procured a writ of certiorari from the circuit judge of the district, commanding the mayor and board of aldermen to certify the ordinances and all proceedings thereunder to the circuit court. At the same time the certiorari was issued, the judge also, on the showing made by Crittenden, issued a writ of prohibition against the mayor, prohibiting him from further arresting or molesting the petitioner or interfering with his business; it being alleged in the petition filed by Crittenden that the ordinance was void and that the mayor was without jurisdiction to impose these penalties. In each and every conviction of Crittenden under these ordinances, he appealed his cases to the circuit court; but each and every time he opened his pool room the municipal authorities rearrested him and imposed another fine. Afterwards, on motion of the town of Booneville, the order granting the writ of prohibition was vacated by the court, and an appeal to this court was granted from the order vacating the writ of prohibition.
There are two questions involved in this case, and only two: First. Hid the mayor and board of aldermen have the power to pass this ordinance? Second. Is this a case where it .was proper to grant a writ of prohibition? Counsel for appellant raise some question as to whether or not the ordinance was passed as provided by law; but we do not deem it necessary to discuss this, since our decision will be based upon the two propositions heretofore announced. It has been decided in the cases
It is .true that Code 1906, § 3893, provides as follows, viz.: Unlawful Business Not Legalized. — Nothing in this chapter, nor the payment of any privilege tax herein provided, shall legalize any business, employment, transaction, article, or device of any kind or the operation thereof, in violation of any statute of the state or the ordinances of any municipality therein now existing or that may be hereafter adopted.” By this section it is provided that the payment of a privilege tax shall not legalize any business, employment, transaction, etc., or device of any kind, or the operation thereof, in violation of any statute of this state, or the ordinances- of any municipality therein now existing or that may be hereafter adopted. But this does not give the municipality the power to pass any ordinance prohibiting the operation of any business which is allowed to be conducted under the laws of this state, unless that business is so conducted as to become a nuisance, or is one which it is given the power to prohibit. If a party having obtained a license to operate a pool room so conducts that business as to become a nuisance, or so conducts the business as .to warrant the municipality in sup
The ordinance passed by the municipality is a general ordinance prohibiting the operation of all pool rooms or billiard tables in the town of Booneville. It is a destruction of property right, and 'a void ordinance. The municipality is not proceeding against this particular pool room as a nuisance; but the ordinance is general in its application, and prohibits any and all pool rooms in the town of Booneville. It may be that all pool rooms should be suppressed; but this, in the present attitude of the law, is a matter which rests with the legislature, and a general ordinance cannot be passed by any town or municipality prohibiting the operation of all pool rooms. The powers delegated to municipalities by the legislature are intended to be
We now come to the question of whether or not a writ of prohibition lies. A writ of prohibition is an extraordinary writ, and is proper to be issued only in cases of extreme necessity. It should appear to the judge issuing the writ that it is the only adequate remedy of the party making the application therefor. It will not lie in a case which may be redressed in the ordinary course of judicial proceeding, and is not to be made a substitute for any other method of obtaining the relief sought. If a complete remedy lies by appeal, certiorari, mandamus, or in any other manner, this writ should be denied. It is different from an injunction, in that tibe injunction is'addressed to the litigating parties, while a writ of prohibition is addressed to the inferior court itself, commanding it to cease from the exercise of' a jurisdiction to which it has no legal claim. High on Extraordinary Remedies, §§ 762, 763. The object of the writ is to restrain an inferior court from acting without authority of law in cases where wrong, damage, and injustice will follow such
Under Code 1906, § 922, authority is given to any judge or chancellor, in term time or vacation, to grant remedial writs in all cases where the same may properly be granted according-to right and justice. Whatever may have been the common-law-rule on the subject of the right to grant the writ of prohibition,, under this section of the code the judges are given the power to-
It is further insisted that because the court has acted, and has convicted the party, a writ of prohibition will not lie to prohibit that which has already been done; but that the writ can be availed of only in a case where the 'court is attempting to act. In view of our statute, and the authorities upon this subject, we do not think this position is tenable. It is true the criminal prosecution is over; but the ordinance has a living, continuing, acting force, in that it is preventing Crittenden from the use of his property, and depriving him of his right to conduct his business, and thereby producing damage to him. Near of enforcement of this void ordinance, and repeated arrests and prosecutions under it,-have caused his business to be closed and his property to be rendered valueless. In the case of Donovan v. City of Vicksburg, 29 Miss., 247, 64 Am. Dec., 143,
It thus appears, from the authorities cited, that the better reasoning is that whenever an inferior court proceeds to act in excess of its jurisdiction, and whenever, as incidental to its action, it involves an infringement of property rights, or a submission to multitudinous and persecuting prosecutions in such way as to make its acts oppressive, there is no adequate remedy by appeal, and it is proper to issue the writ of prohibition; and this is true, whether the court in which the proceeding is instituted has acted or not, if the effect of the void authority under which it is assuming to act stands as a vexatious menace to personal liberty or the destruction of property rights. It follows that the discharge of the writ of prohibition by the learned court below was error. The court should have sustained the writ.
The writ of prohibition is therefore reinstated, and the cause is reversed and remanded.
Reversed.