Thе petitioner is the Mayor of the City of Hot Springs, and he is under indictment returned by the Garland County grand jury for nonfeаsance in office, the indictment being returned under authority of section one of the Act of 1895 (Acts, 1895, p. 69. Kirby’s Digest, section 5492), which provides that “if the mayor or police judge of any city of the first or second clаss or incorporated town in this State shall wilfully and knowingly fail, refuse, or neglect to execute or cаuse to be, executed any of the laws or ordinances within their jurisdiction, they shall be deemed guilty of nonfеasance in office;” and that it shall be the duty of the circuit court of any county within which any mayor or рolice judge may be commissioned and acting, upon indictment charging any such mayor or policе judge with nonfeasance in office, “to hear and determine such charges, and if upon such hearing thе charges be proven to be true, to enter a judgment of record removing such guilty mayor or police judge from office.”
The cause is pending now in the Garland circuit court, and petitioner alleges that the circuit judge is about to proceed to a trial of the cause without a jury, and he prays for a writ to prohibit the judge from proceeding in that manner. The contention is that the right of trial by jury extends to рroceedings of this kind, and that the court is about to act beyond its power in attempting to try the case without giving the accused the benefit of a trial by jury.
The first question presented is whether or not this is a case in whiсh a writ of prohibition will lie, and the court reaches the conclusion that it is not the appropriаte remedy. “The office of the writ of prohibition,” said this court in the case of Russell v. Jacoway,
The text writers on the subject place the same limitations upon the remedy оf prohibition. Mr. High, in his work on Extraordinary Legal Remedies (Section 767b) says: “Upon an application for a writ of prohibition to stay the action of an inferior court, the sole question to be determined is the jurisdiсtion of that court, and the court to which the application is made will, for the purposes of thе ease, consider the cause qf action of the plaintiff below to be such as he has stated it in his pleadings, without investigation or inquiry touching the merits of the action. Nor will the court in which the relief is sought consider any errors or irregularities occurring in the progress of the cause in the inferior court, since the writ оf prohibition is not an appropriate remedy for the correction of errors.” The same author, in another section of his work on this subject (Section 772) says: “Another fundamental principle, and one which is to be constantly borne in mind in determining whether an appropriate case is presented for the exercise of this extraordinary jurisdiction, is that the writ is never allowed to usurp the functions of a writ of error or certiorari, and it is never employed as a process for the correction of errors of inferior tribunals. And the courts will not permit the writ of prohibition, which proceeds upon the ground of аn excess of jurisdiction, to take the place of or to be confounded with a writ or error, which proceeds upon the ground of error in the exercise of a jurisdiction which is conceded.” The same rule is stated in other authorities. 2 Spelling on Injunctions and other Extraordinary Remedies, Chap. LV.; 32 Cyc. 613.
Therе seems very little, if any, conflict among the authorities in the statement of the'rule itself, but there are somеwhat divergent views in the application of the rule. We are unable to find any case in which the precise question involved here is treated, but we are of the opinion that the act of the court in proceeding to trial without allowing a jury, if erroneous, constitutes only an error or an irregularity which must be corrected by appeal. The jurisdiction of the court itself is undoubted. The jury is but an arm of the court, and sо far as jurisdiction is concerned it cannot be said that there is any separate jurisdiction of the jury. The jurisdiction is exercised by the court as a whole, and if there is an erroneous exercise of that jurisdiсtion during the progress of the matter while pending before the court, the error must be corrected by аppeal. There appears to be no escape from that conclusion, and anything that might be said now with respect to the merits of the controversy would be mere dictum. We do not feel at libеrty to disregard the settled principles which control the use of the writ of prohibition in order to decide in advance the question whether or not the circuit judge can refuse to allow a jury and proceed with the trial of the case himself.
The prayer for writ of prohibition is therefore denied.