119 P. 1037 | Utah | 1911
Oarrigan, upon a complaint filed in the criminal division of the City Court of Salt Lake City, was charged with a violation of a city ordinance. He there demurred, upon the ground's that the complaint did not state facts sufficient to constitute an offense, and that the court was without jurisdiction, for the reason that the ordinance upon which the complaint was founded was unconstitutional. The court overruled the demurrer, took the defendant’s plea, and set the case for trial. He then applied to the District Court for a writ of prohibition to restrain the City Court from further proceeding in the case. These matters were all alleged in the affidavit for the writ. The ordinance and the particulars wherein it is claimed it is invalid were also fully set forth, and the allegations made that the inferior tribunal, for that reason, was without jurisdiction, and, unless restrained, would proceed in the case. It is further averred, in the language of the statute, that the petitioner had no “plain, speedy and adequate remedy in the ordinary course of law.” Upon this affidavit, an alternative writ and order to show cause was issued and directed to the judge of the City Court. He demurred to the affidavit, raising questions of remedy and sufficiency of facts to entitle the petitioner to the demanded relief. The demurrer was sustained, and a judgment rendered against the petitioner, denying the writ and dismissing the proceedings. Whether the court denied the writ on the ground that the ordinance was valid, or on the ground of remedy, is not made to appear. From that judgment, the petitioner has appealed.
He again at the threshold is here met with the question of remedy. Our statute (Comp. Laws 1907, c. 70) provides that the writ of prohibition arrests the proceedings of a tribunal, etc., when such proceedings are without
Upon this point the petitioner has contented himself by merely citing cases where the writ was granted to restrain proceedings under unconstitutional acts or ordinances. The case of Pennington v. Woolfolk, 79 Ky. 13, is cited to that effect. But, under the Kentucky statute (Patten v. Stephens, 77 Ky. [14 Bush] 324, Campbellsville Tel. Co. v. Patteson, Circuit Judge, 114 Ky. 52, 69 S. W. 1070), it is in express terms provided that the validity or constitutionality of a city ordinance, etc., shall, be tried by a writ of prohibition. In the cited ease of Hughes v. Recorder's Court, 75
Where the validity of a statute or ordinance is involved, we think the general and better rule obtains that a writ of prohibition will not be granted in advance of the trial or determination in the inferior court, where the question is presented, when a plain remedy by appeal is afforded, though it may be that the higher court will, when
“Ordinarily we exercise supervisory jurisdiction by writs of certiorari and prohibition only in unappealable cases, leaving errors committed in appealable cases, or questions affecting tbe validity of tbe statute upon wbicb tbe prosecution is based, to be corrected or decided in due course on appeal. . . . Cases may arise where tbe court, in tbe exercise of a sound discretion, and in furtherance -of tbe ends of justice, will exert tbe control and supervision of inferior courts” by prohibition, “even in cases where an ultimate appeal lies. But they must be cases of peculiar circumstances or extreme urgency or necessity, wbicb talce them out of tbe general rule referred to. We do not deem tbe instant case to be of that character.”
Tbe necessary delay and expense of an appeal ordinarily fumisb no sufficient reasons for bolding that tbe remedy by appeal is not adequate or speedy. To bold otherwise is to bold that all appeals-are not adequate or speedy, for all involve some delay and expense.
We think tbe writ was properly denied upon tbe ground of remedy, and bence express no opinion upon tbe validity of tbe ordinance. Tbe judgment of tbe court below is therefore affirmed, with costs.