People ex rel. Gould v. Commissioners of Excise

61 How. Pr. 514 | N.Y. Sup. Ct. | 1881

Cullen, J.

A writ of prohibition is a preventive remedy, not a corrective one. It can only be used to prevent the doing of an act about to be done, not as a remedy for acts already completed (United States agt. Hoffman, 4 Wallace, 158; High on Remedies, 542). I do not think that section 2100 of the Code was intended to alter in this respect the common law rule. • The provisions there contained—that the tribunal proceeded against may be directed to annul or vacate proceedings theretofore taken in the matter—applies only to interlocutory or mesne proceedings prior to the final decision. I think the respondent’s contention is correct, that the judicial proceedings of the excise commissioners terminated when the board pronounced its judgment revoking the relator’s license, and that the taking physical possession of the license is a ministerial act as to which prohibition will not lie. It thus appearing that the proceeding sought to be enjoined had been fully terminated prior to the issue of the alternative writ, the writ must be quashed and the relator left to such other remedy by certiorari or otherwise as he may be advised.

Motion to quash writ granted, with ten dollars costs.