86 W. Va. 316 | W. Va. | 1920
At the suit of Martba A. Langfitt, a citizen and taxpayer of Doddridge, County, the circuit court of said county prohibited the county court thereof from executing a contract entered into between it and the county court of Tyler, an adjoining county, whereby the former agreed to erect a. concrete bridge, wholly within the territory of Tyler County, and about a quarter of a mile from the dividing line between the two counties, on the' ground that said county court was without jurisdiction or authority to expend the public revenues in making improvement outside of the territorial limits of the county, and it has appealed. :
The first question with which we are confronted is whether prohibition lies in such a case? At the, common law prohibition did. not lie to restrain or prohibit purely ministerial acts. It was available to prohibit only judicial action, and was a writ issuing out of a higher court directed to an inferior judicial court or tribunal. High on Extraordinary Remedies, 3rd ed., section 769; 22 R. C. L., se,c. 13. This court in Hassinger et als. v. Holt, Judge, 47 W. Va. 348, held: “A writ of prohibition only goes against a judicial tribunal and judicial action, and not that which is purely ministerial.” Although the opinion in that case makes no reference to section 45, ch. 39 of the Code, the ease arose, and was decided long after the passage of the statute, and the reason it is not mentioned in the opinion must be because the court regarded it as not applying in case of purely ministerial acts.
"We do not say prohibition does not lie to prevent judicial or quasi-judicial acts of county courts and other inferior tribunals, in excess of their authority. It was expressly held to be the
We must and do admit the authority and right of the legislature to regidate remedies and eve,n to substitute new remedies for old ones, and such regulations and substitutions are binding on the courts. But we do think it was not the legislative purpose! to broaden the scope of the writ so as to include within its operation purely ministerial acts to which it did not apply at the common law. Section 45; ch. 39 of the Code is as follows: “The circuit court of any county may, by writ of prohibition, prevent the county court of such county from exercising any jurisdiction or authority which is not conferred on it by law and may, by writ of mandamus enforce the performance of any legal duty of such court. But in such cases a writ of error or supersedeas may be granted on like principles and rules as in other cases.” This language might seem to be, unambiguous and sufficiently comprehensive to embrace ministerial as well as judicial acts of the county court in excess of its lawful authority, ye.t, after a careful consideration of the statute in Baker v. O’Brien, 79 W. Va. 101, we reached the conclusion that it was not the intention of the legislature thereby to enlarge the scope¡ of the writ and thus extend the jurisdiction of the courts to governmental and ministerial matters. The same question was then presented as is presented by this appeal, although in a different way. That was an original application to this court for a rule in prohibition to restrain the circuit court from proceeding by prohibition to prohibit the county court from submitting to the voters of the county of Jackson the question of changing the location of the county seat, upon a petition by the voters of said county, deemed by the county court to be, sufficient. There the action of the county court in calling the election was held to be purely ministerial, and prohibition -did not apply. So, in the present case the building of the bridge is also purely a ministerial act. By Article 8, section 24 of the Constitution, and by section 9, ch. 39 of the Code,
We therefore reverse the judgment and dismiss plaintiff’s petition without prejudice, to her right to pursue some other and appropriate remedy.
Reversed and •petition dismissed.
