118 P. 271 | Mont. | 1911
delivered the opinion of the court.
On the 20th day of September, 1911, a complaint was filed in the police court of the city of Butte charging the relator with
Section 7228, Revised Codes, provides that a writ of prohibition may be issued by the supreme court to any inferior tribunal in all cases where there is not a plain, speedy and adequate remedy in the ordinary course of law. The supreme court of Washington under similar enactments and circumstances refused to issue the writ. The court said: “In this case the appellant had an adequate remedy in the ordinary course of law, either by appeal from an adverse judgment or by application for a writ of habeas corpus.” It is to be remembered, also, that the relator may be acquitted of wrongdoing. In the case of State ex rel. Hainsworth v. Shannon, 130 Mo. App. 90, 108 S. W. 1097, the St. Louis court of appeals refused to prohibit the prosecution of the relator in the police court for alleged violation of a smoke ordinance. It was contended that, for various reasons, the ordinance was void. The court said: “Relator had a perfect remedy by an appeal in the first instance to the circuit court, and later, if need be, to this court.”
The court of appeals of New York, in People ex rel. Livingston v. Wyatt, 186 N. Y. 383, 79 N. E. 330, 10 L. R. A., n. s., 159, 9 Ann Cas. 972, said: “We are of opinion that the subpoena issued by the magistrate was void upon its face, and that it called for obedience to its commands on the part of no one. We are also of opinion, however, * * * that prohibition is not the proper remedy. The writ of prohibition is not favored by
The proceedings are dismissed.
Dismissed.