54 W. Va. 54 | W. Va. | 1903
Lead Opinion
The town of Bramwell in the county of Mercer is a municipal corporation, chartered as such by the circuit court of that
On the 16th day of July, 1903, the council of said town made and passed an ordinance, with a preamble, in the words and figures following:
“Whereas, certain persons have, within the corporate limits of the town of Bramwell, openly engaged in gambling by operating a money mating device, known as Slot Machine, to the manifest corrupting of the morals of-the citizens of the said town:
Fow therefore,
Sec. I. Be it ordained by the council of the town of Bram-well, that any person or persons, who shall keep or exhibit any Gaming Table, Faro Bank or Keno Table, or any Slot Machine or any table or machine of like kind, under any denomination, whether the Game be played with Cards, Dice or otherwise, or shall be concerned in interest in keeping or exhibiting such table, hank or machine, shall be fined not less than $100.00.
See. IT. A second conviction for the offense named in the first section of this ordinance shall be punished by a fine of not less than $100.00 and imprisonment in the town jail not exceeding 30 days.
Section III. Any person who shall play upon any table or machine mentioned in the first section of this ordinance and thereby either wins or loses any sum of money shall be fined not less than $10.00.”
It further appears from the record that, at the time and since the passage of said ordinance, petitioner, Morley, was the proprietor of a hotel in Bramwell; that there was in the waiting room or lobby of that hotel, a slot machine, upon which people were allowed to play; that said machine did not belong to Morley, but to petitioner, Atkinson; and that Morley had permitted Atkinson to place the same in the hotel.
On the 9th day of July, 1903, a warrant was issued by said A. I. Godfrey as Mayor of said town of Bramwell against petitioner, J. E. Morley, upon the charge of keeping and exhibiting •the said slot machine in violation of the provisions of said
Petitioners were arrested npon the warrants issued against them, respectively as aforesaid, and taken before Godfrey as Mayor, and each required to enter into a recognizance to appear before said mayor at a time fixed, to answer the aforesaid charges. Petitioners then presented their respective petitions to Hon. Joseph M. Sanders, Judge of the Circuit Court of Mercer County, praying that writs of prohibition might issue to prohibit the said A. I. Godfrey, Mayor as aforesaid, from trying petitioners upon said warrants, for the alleged offenses therein charged. The writs prayed for, were denied by said Circuit Judge but upon presentation of similar petitions to^ a Judge of this Court, a rule was awarded upon each 'petition against Godfrey, as Mayor of the town of Bramwell, requiring him to show cause, if any, he can, why writs of prohibition shall not issue against him as prayed for.
The same question being involved in both cases, they are considered and disposed of together.
Petitioners allege that said ordinance is invalid; that the council of the town of Bramwell had, and has no authority to pass such ordinance; that the warrants issued by said mayor as aforesaid thereunder, were and are without legal authority, and are, therefore, void. They further contend that the subject of gambling and gambling devices is fully covered by State law, and that the Legislature not having granted power to such municipal corporations to regulate it, the town is without authority to do so.
Respondent, Godfrey, moves the court to quash the rule, and urges, in support of his motion, that the ordinance in question is authorized by a clause of section 28 of chapter 45 of the Code by which, it is required of the council of a city, town or village to protect the persons and property of the citizens of such city, town or village, and to preserve peace and good order therein. The cases of Moundsville v. Fountain, 27 W. Va. 182; Jelly v. Dils, 27 W. Va. 267; and Judy v. Lashley, 50 W. Va. 628, are cited by him.
In 'the two cases first mentioned, the question of the right of the towns of Moundsville and Parkersburg to require license under their respective charters from persons to sell spirituous
In referring,to those eases, Judge Poffenbarger, in Judy v. Lashley, 50 W. Va. 628, 634, says: “This position must not be confounded with the position announced in Moundsville v. Fountain, 27 W. Va. 182, and Jelly v. Dils, 27 W. Va. 267, holding that municipal corporations may punish for unlawful retailing of spirituous liquors,” etc. The statute expressly gives power to such corporations to impose license taxes'upon the privilege of making such sales, from which it results that the council must have power to enforce its regulations. That is a very different matter from the case under consideration. Those cases do not apply to the cases now before us.
Chapter 151 of the Code devotes twelve sections to the offenses of gaming, lotteries and lottery tickets. It defines the several prohibited acts and fixes the respective fines and punishments for violations thereof. This chapter seems to legislate upon and fully cover the whole subject mentioned in its title. The legislature having thus legislated, has the town of Bramwell power to make and pass the ordinance in question ? Points 1 and 2 .of the syllabus in Judy v. Lashley, supra, hold:
“The police power of a municipal corporation depends upon the will of the legislature, and a city, town or village can only exercise such police power as is fairly included in the grant of powers by its charter.
“Section 28 of chapter 47 of the Code, by vesting in the councils of municipal corporations power and duty cto protect the persons and property of the citizens of such city, town or village, and to preserve peace and good order therein/ does not confer power to punish acts made criminal by the State law and fully covered thereby, except such as would be attended with circumstances of aggravation not included in tire State law. Such power must be specifically and expressly given by the legislature before it can be exercised by such corporation.”
Said section 28 enumerates certain powers conferred upon the council. Section 29 further provides that, “To> carry into effect these enumerated powers, and all others conferred upon such city, town or village, or its council, by this chapter or by any further act of the legislature of this State, the council shall have power to make and pass all needful orders, by-laws, ordin-
There is no specific authority conferred by our statute upon cities, towns or villages to regulate gaming or gambling devices-
In Gas Co. v. Parkersburg, 30 W. Va. 439, this Court said: “It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily and fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of power is resolved by the courts against the corpora-, tiori, and the power is denied. Of every municipal corporation the charter or statute by which it is created is its organic act. Neither the corporation nor its officers can do any act, or make any contract, or incur any liability, not authorized thereby. All acts beyond the scope of the powers granted are void. Much less can any power be exercised, or any act done, which is forbidden by charter or statute. These principles are of transcendent importance, and lie at the foundation of the law of municipal corporations. 1 Dill. Mun. Corp., section 89, (55.)”
In 20 Am. & Eng. Enc. Law, 2 Ed., 1140, the rule is thus stated: “The rule is general that the powers of a municipal corporation are to be strictly construed, and if there is a reasonable doubt of the existence of a particular power, the doubt is to be resolved in the negative,”
It is not necessary for the determination of these cases, to decide whether or not the slot machine is included within the meaning of the sections of chapter 151, above stated. The ordinance under consideration places it in the same class as the gambling devices enumerated in section 1 of that chapter; and prescribes penalties for the violation of said ordinance. This,
Ror the reasons stated, the ordinance aforesaid was and is void, and of no legal effect. The motion to quash said rule is therefore overruled, and the writ in each case is awarded, as prayed for.
Writ Awarded.
Concurrence Opinion
Note by
(concurring):
It has been suggested that the writ of .prohibition does not lie in this case, although the ordinance under which the respondent is proceeding is absolutely void. The argument in support of this position is that the mayor, sitting as a judge, has the power to- decide the question of the validity of the ordinance, incidentally in determining the question of the guilt or innocence of the petitioner, and that, having power to begin the consideration of that question, he has jurisdiction within the meaning of the statute. Some decisions are contrary to that position. The first case that seems to be in conflict wtih it is that of McConiha v. Guthrie, 21 W. Va. 134, in which a judge of a circuit court was restrained by the writ of prohibition from proceeding to condemn, upon the application of a railroad company, land for railway purposes within twenty feet of dwelling houses, situated on a tract of land through which the railroad company was seeking to acquire a right of way. The statute in force at that time prohibited the taking of land within twenty feet of a dwelling house for railroad purposes, but whether it was in force or had been repealed was a controverted question in the case, upon which the court had to pass. It erroneously decided that the statute had been repealed. Upon the _ application for the writ of prohibition, this Court held that the statute had not been repealed, and that, although the circuit court had jurisdiction of the parties and of the subject matter, it had exceeded its legitimate powers in awarding the condemnation of dwelling houses. In delivering the opinion, Judge SnydeR, admitting that there was jurisdiction of the cause, said: “There are no circumstances under which such houses and lands can be invaded. The question of the right to condemn such houses and land arose incidentally or collaterally during the proceedings,
A similar case is that of Wilkinson v. Hoke, 39 W. Va. 403, in which a writ of prohibition was awarded against a judge of a 'circuit court, prohibiting the enforcement of’a judgment for costs in a case in which a statute declared that no judgment for costs should be rendered. It was a judgment in violation of a plain positive statute, but it might be said that, as the court was called upon to decide whether costs should be awarded, it must consider the case before it in the light of the statute, apply the statute to it and determine judicially whether the cause was such a one as was contemplated by the statute, and, therefore, having the right to consider that question, it had jurisdiction. But this objection seems not to have been made.
Another case of the same general nature is that of Railway Co. v. Pinnacle Coal Co., 44 W. Va. 574, in which a writ of prohibition was awarded against a justice of the peace, restraining him from the enforcement of a judgment for freight
Another similar case is that of City of Charleston v. Beller, 45 W. Va. 44, in which a judgment for costs rendered against the City of Charleston in a criminal case, in violation of the statute, wras prohibited by this Court. Here, as in the case last above mentioned, the circuit court had nothing before it that could constitute a cause of action for neither the common law nor any statute authorized costs against the city. It was also similar to the case of Wilkinson v. Iloke, because it was a judgment wrhich the law prohibited. Judy v. Lashley, 50 W. Va. 628, in. which a writ of prohibition was awarded against the mayor of a town, proceeding under a void ordinance to enforce a judgment for a fine, is a case almost like the one under consideration now. The only difference is that the application for the writ in Judy v. Lashley was not made until after judgment, while in this case, it came before judgment. In that ease, the question now under consideration was not raised. All the argument related to the validity of the ordinance and it was not suggested that, although the ordinance was void, a proper case for prohibition had not been made.
These decisions hold that an inferior court cannot uphold its jurisdiction upon the ground that it has a right to consider, and is bound to consider, the law determining its jurislietion. It will be observed that the law which set limits upon the jurisdiction in. all these eases, related to the matters with respect
The case of Buskirk v. Judge, 7 W. Va. 91, may possibly be in conflict with them. A prohibition was applied for to restrain the judge of a circuit court from trying a man upon an indictment for murder, upon the ground that, at the date of the application, there was a statute in force which required that, in all cases of felony, the respondent should have a preliminary examination before the county court before he could be put on trial in the circuit court, unless such right were waived, and that he had not waived it but had demanded it, and it had been refused. This Court refused the writ, holding that the circuit court had jurisdiction to say whether the defendant was entitled to a preliminary examination, and that if, in passing upon that question, it erred in denying the right claimed, and put him upon his trial without such examination, the act of the court would not be in excess of its powers nor beyond its jurisdiction, but simply an error which would be corrected by the appellate court on a writ of error. Haymond, Juuge, delivering the opinion of the Court, said the writ was directed to the judge and parties to- a suit in an inferior court, commanding them to cease from the prosecution thereof, upon the suggestion either that the case originally, or some collatteral matter arising therein, did not belong 'to that jurisdiction, and that beyond these two grounds, it seemed that the court would not interfere. Proceeding, he said: “When the matter is within the general jurisdiction of the court below, and in the conduct of the trial they have not exceeded their authority, the court above will not, on an application for a writ of prohibition, inquire whether they have decided right or not.”
Which of these two .propositions most nearly conforms to the principles of the common law, relating to the subject of prohibition? If it appears that, by the common law, the scope of the writ of prohibition is broader than that given to it in Buskirk v. Judge, the result will tend to show that the proposition announced in the other cases is the true rule.
The rule of the common law was announced in Mendyke v. Stint, 2 Mod. 272, as follows: “First, That if any matter appears in the declaration which showeth that the cause of action
Several illustrations of the use of this writ will he found in 8 Bacon’s Abr. 230, 231. There, it is said: “If there be one entire contract above 40s., and a man sue for it in a court-baron, severing it into divers small sums under 40s., a prohibition shall be granted, because this is done to defraud the court of the king.” Upon the same. ground the writ went to the hundred court and to the court of the Honor of Eye. These were all common law courts, and not spiritual courts, as to which the writ was used far more extensively.
In Mayor, etc., of London v. Cox and Others, L. R. 2 H. L. 239, the common law principles governing the writ of prohibition are extensively discussed, in answering questions propounded by the House of Lords to the judges. ' And there it is clearly shown that prohibition lies where an inferior'court does an act which, is prohibited by the statute. The statute of West-minister The First, enacted, “of great men and their bailiffs and others (the King’s officers only excepted, unto whom especial authority is given), which at the complaint of some or by their own authority attach others passing through their jurisdiction with their goods, compelling them to answer upon them upon contracts, covenants, and trespasses done out of their power and their jurisdiction, when indeed they hold nothing of them, now within the franchise where their power is, in prejudice of the King and his crown and to the damage of the people, it is provided, that.none from henceforth so do; and if any do, he shall pay to him that by this occasion shall be attached his damages double, and shall be grievously amerced to the King.” Prohibition went against the “great men and their bailiffs” who violated this statute. The opinion in the case last referred to at page 255, says: “The form of writ upon this statute is in the Register, and also in Fitzherbert, Natura Brevium, with the following comment: Tf bailiffs, mayors, or others who claim jurisdiction to arrest a man upon a plaint before them, or to attach his goods, etc., do arrest one for trespass or contract, who was not within their jurisdiction, the party arrested, &c., shall have a prohibition directed unto them.’ ”
Further light is thrown upon the nature and use of this writ
"Another class in which the exception must first be taken in the court below is that in which there is general jurisdiction over the subject matter, but a defence is raised which the court is incompetent to try, as where in a suit to repair a chancel the impropriator pleads a custom for the parish to- repair, or raises a question of parish or no parish, which must be tried by a jury; see Duke of Rutland v. Bagshaw. In such a case the prohibition goes so soon as it appears that the special court cannot proceed without trying the custom, or taking a step towards trying it, even though it be not yet in issue, or a plea thereof refused; French v. Trask; Byerley v. Windus. And in this class of cases, the prohibition acts simply in aid of the special or inferior court, by trying what the court had no jurisdiction to try, and upon an affirmative decision the prohibition is absolute, .but upon a negative decision there is a judgment, of consultation,
These authorities seem to put it beyond question that if it appears on the face of the proceedings that the lower court had no right to try the case, there is sufficient ground to warrant the issuing of a writ of prohibition. In some of the cases the subject matter of the action was not proper for the court, in others, although the case was of that general class belonging to the jurisdiction of the court, some collateral matter arose in the case just as it did in McConiha v. Guthrie, over which the court had no control, and in others the case made out was one belonging to the general class over which the court had jurisdiction, and no such collateral matter arose, but it appeared that the cause of action had not arisen within the territorial jurisdiction of the court. In all these cases, the inferior court was called upon to consider whether it might proceed or not. If that gave jurisdiction to such an extent as to render its decision merely erroneous, and subject to correction on appeal, tiren there could have been no prohibition in any case. Such clearly was not the common law practice. The inferior court proceeded at its peril. If, in determining the question of its own jurisdiction, it erred, the writ of prohibition issued against it. It was bound to know the law setting the limits upon its jurisdiction, and could no more justify or uphold its jurisdiction, under the plea of ignorance of the law, than can an individual in reference to his contracts or his acts.
This writ has been used less extensively in Virginia and in this State than it was in England in earlier times. Up until 1855, it seems to have been awarded in only three cases in Virginia. Miller v. Marshall, 1 Va. Cas. 158; Hutson v. Lowry, 2 Va. Cas. 42; and Jackson v. Maxwell, 5 Rand. 636. In Miller v. Marshall, a justice of the peace was prohibited from trying an action involving the title to a freehold estate, a matter not belonging to the jurisdiction of the justice, but to that of the county and corporation courts. In Hutson v. Lowry, a justice of the peace was prohibited from proceeding in several actions in which a single debt had been divided into several parts for the purpose of attempting to give jurisdiction .over an amount in excess of what the law permitted a justice to take cognizance of. Here again the matter shown in the complaint
A question very' similar to this one is mentioned, but not decided, in Mayo v. James, 12 Grat. 17. Point 1 of the syllabus reads as follows: “The mayor of the city of Richmond has authority to try eases in which a party is prosecuted for the violation of a city ordinance. Quaere: Whether in such a case a prohibition will lie to his proceeding to try the case, on the ground that the ordinance is in conflict with an act of tire general assembly. And it seems it will not.” The charter of the city conferred upon the mayor power to “take cognizance of such cases as may be tried before him under the laws of the
Arnold v. Shields fully supports the proposition and opinion of Judge Moneure. He holds that a justice of the peace has jurisdiction to try the right to a penalty which a void statute purports to give and that, in erroneously deciding that the statute is valid, he does not transcend his jurisdiction, but simply commits an error which is the subject of an appeal. In a later Kentucky case, Pennington v. Woolfolk, 79, Ky. 13, a statute conferring upon a county court power to assess and fix the value of property for purposes of taxation was held unconstitutional, and the county court prohibited from proceeding under it. In City of Owensboro v. Sparks, 99 Ky. 351, the court refused a writ of prohibition to prevent a municipal court from proceeding to punish offenses which void city ordinances purported to create, holding that the proper method of testing the validity of the ordinance is by appeal from the judgment of the police court. Ex parte Roundtree, 51 Ala. 42, holds that, “This court will interfere by prohibition to restrain a circuit judge from sitting as the presiding judge of a statutory inferior court, when the act creating that court, ^ind making him the presiding judge thereof, is declared unconstitutional.” In McInerney v. City of Denver, 17 Col. 302, a writ of prohibition was awarded against a proceeding under a void city ordinance. The Louisiana court lias fluctuated in its decisions. In State ex rel v. Judge, 39 La. 132, the court held that, “When a party is prosecuted for a crime under a law alleged to be unconstitutional, in a case which is unappealable, and where a proper plea setting up the unconstitutionality has been overruled by the judge, a proper case is presented for the exercise of our supervisory power in determining whether the judge is exceeding the bounds of judicial power in entertaining a prosecution for a crime not created by law.” The decision in State ex rel v. Judge, 44 La. 1100, holds the- contrary, as does also State ex rel v. Wilder, 49 La. 1211. In State ex rel v. Rost, Judge, 49 La.
In Houseman v. Montgomery, 58 Mich. 364, the court holds that: “Prohibition issues to restrain a court of equity from proceeding with the exercises of power conferred upon it by an invalid act.” In State ex rel. v. Orlando, 32 Minn. 540, a writ of prohibition was allowed against a judge.who was assuming to exercise powers which an invalid statute purported to give. In Donovan v. Mayor & Council, 29 Miss. 247, 64 Am. Dec. 143, a prohibition was awarded against the marshall of a city, restraining him from selling hogs found running at large, under an ordinance directing it, which ordinance was held void for unconstitutionality. In Zylstra v. Charleston, 1 Bay (S. C.) 382, a prohibition was awarded against proceedings under a void city ordinance. In State ex rel v. Simmons, 2 Speer (S. C.) 761, proceedings under a void statute were prohibited. In People v. Speers, 4 Utah, 385, criminal proceedings before a justice of the peace under an unconstitutional statue purporting to give jurisdiction were prohibited. In re Schumaker, 90 Wis. 488, holds that: “A writ of prohibition will not be granted against proceedings in the circuit court to incorporate a village, on the ground that the statutes authorizing such proceedings are unconstitutional. The ordinary remedies at law are ample,” Erom the reasoning it is to be inferred that the writ was withheld, not because it could not be granted, but in the discretion of the court.
In Railroad Co. v. Commissioners, 127 Mass. 50, the court held that, “The owner of land taken, by the manager of a railroad owned by the Commonwealth, under a statute which does not make adequate provision for the payment of compensation for the land so taken, may have a writ of prohibition to the county commissioners to prevent them from proceeding with the assessments of the damages caused by the taking.” In Sweet v. Hulbert, 51 Barb. (N. Y.) 312, a writ of prohibition was
While the question now under consideration is not discussed nor particularly mentioned in the case of Weston v. Charleston, 2 Pet. (U. S.) 449, that case seems to confirm the proposition that the writ lies against proceedings under a void ordinance. The City of Charleston levied an unconstitutional tax of seven per cent on stock of the United States. The Common Pleas Court of South Carolina awarded a writ of prohibition against the collection of the tax. To the decision of that court, a writ of error was awarded by what was called the Constitutional Court of South Carolina, where the judgment was reversed. To that judgment, the Supreme Court of the United States awarded a writ of error, and reversed the judgment of the Constitutional Court, thereby re-instating the writ of prohibition.
Thus it appears that the decisions are in conflict and that there is a wide difference of opinion among the judges upon the question presented. But the decisions seem to preponderate in favor of the jurisdiction by prohibition in such case. As by the common law, a writ of prohibition could be had upon the mere'ground that the cause of action did not arise within the territorial jurisdiction of the court, or that the subject matter of the action belonged'to the jurisdiction of some other court, or that a collateral matter which was triable by some court, hut not by that particular court, had arisen in the cause, all of which defects might have been treated as mere grounds of error, remediable by appellate proceedings, it would seem strange that a court could not be prohibited when attempting to do
This conclusion is somewhat strengthened by observations on the subject of jurisdiction expressed in the opinion in Windsor v. McVeigh, 93 U. S. 282, which are as follows: “All courts, even the highest, are more or less limited in their jurisdiction; they are limited to particular classes of actions, such as civil or criminal; or to- particular modes of administering relief, such as legal or equitably; or to transactions of a special character, such as arise on navigable waters, or relate to the testamentary disposition of estates; or to the use of particular process in the enforcement of their judgments. * * * Though the court may possess jurisdiction of a cause, of the subject-matter, and of the parties, it is still limited in its modes of procedure, and in -the extent and character of its judgments. It must act judicially in all things, and cannot then transcend the power conferred by the law. If, for instance, the action be upon a money demand, the court, notwithstanding its complete jurisdiction over the subject and parties, has no power to pass judgment of imprisonment in the penitentiary upon the defendant. If the action be for a libel or personal tort, the court cannot order in the case a specific performance of a contract. * * *
This proposition has been solemnly laid down and asserted by this Court in Ensign Co. v. Carroll, 30 W. Va. 533. In an action before a justice of the peace for the recovery of money due on contract there had been two new trials, the last of which resulted in a verdict for $5.79. The law allowed no more new trials nor any appeal. Then the judgment debtor filed a bill in equity and, upon it, obtained an injunction to the judgment. That bill did not contain a single allegation of a kind or character to give jurisdiction in equity for a proceeding of that kind. A court of equity can enjoin a judgment where there has been fraud in its procurement of such a character that it could not have been relied upon in the action at law, and under some other peculiar circumstances. Ho such allegations appeared in the bill. There was nothing in it that gave the court so much as a pretext to say that it presented a cause of action within its jurisdiction. Upon an application to this Court, a writ of prohibition was awarded against the judge who granted the injunction.
The other side of the rule is illustrated in the three cases of County Court v. Boreman, 34 W. Va. 87, County Court v. Armstrong, Id. 326, and County Court v. Boreman, Id. 362. In the first two of these cases, writs had been obtained from the circuit court by parties who had no such interest in the proceeding pending in the county court as entitled them to a writ of prohibition. Moreover, at their instance, the circuit court, by appellate process, undertook to review the action of the county court in respect to a matter that was not a subject
This view accords with the law relating to the acquisition of jurisdiction of the person, where the court has jurisdiction of the subject matter. If it has no jurisdiction at all over the person it cannot proceed. There must be something in the form of process and something in the form of return of process in order to give jurisdiction. If there is no pretense of either, then the court has no power to say it has jurisdiction. There is nothing for it to consider in that connection. But if there is a defective process or defective service, then the court has power to decide whether the process or return is sufficient. 'There is no ground for a writ of prohibition, for, if the court has power to decide at all, its erroneous decision does not take away its jurisdiction. Works on Courts and Their Jurisdiction, p. 634.
In this case the complaint, upon which the mayor issued his warrant and undertook to proceed, set out that as an offense, which the law does not recognize as an offense. It called for a'
Iiow far is the writ discretionary? This is determined by statute in some of the States. Our statute gives it as matter of right. Until 1882, our statute was the same as the act 1 Will, 4 c. 21, but in that 3^ear it was amended. But the amendment is only declaratory of the common law, for the action of the court in allowing or refusing it was always reviewable. Home v. Earl Camden, cited; Forster v. Forster, L. R. 4 B. & S. 187; Mayor &c. v. Cox, L. R. 2 H. L. 239. The writ is not favored by the American courts nor by the later English courts, and it is generally refused where the applicant has another adequate remedy.
The common law rule is stated in Mayor &c. v. Cox, cited, as follows: “There is, indeed, a distinction after sentence between a patent and a suggested defect, for if the party below, whether plaintiff or defendant, thinks proper, instead of moving for a prohibition, to proceed to trial in the special or inferior court,' and is defeated, then, if the defect be of power to- try the particular issue only (defectus tria-tionis, as it has been called), the right to move for a prohibition is gone. If the defect be of jurisdiction over the cause {defectus jurisdic-tionis), and that defect be apparent upon the proceedings, a prohibition goes after sentence: Robert v. Humby. If it be not apparent, but the party, instead of moving for a prohibition, pleads in the special or inferior court the facts ousting the jurisdiction, and such co-urt improperly decides that it has jurisdiction, he may, notwithstanding such decision, upon satisfying' a, superior court that it was erroneous, obtain a prohibition: Thompson v. Ingham, followed in Chew v. Holroyd, and Marsden v. Wardle. Where, however, the defect is not apparent, and depends upon some fact in the knowledge of the applicant which he had an opportunity of bringing forward in the court below, and he has thought proper, without excuse, to allow the court to proceed to judgment without setting up the objection, and without moving for a prohibition in the first instance, although it should seem that the jurisdiction to grant a prohibition in respect of the right of the crown is not taken
Tor the foregoing reasons I concur in the decision.
Dissenting Opinion
(dissenting) :
I dissent because I do not think prohibition lies. The mayor had jurisdiction of cases of this general nature, that is, to entertain, hear and determine prosecutions for the violations of town ordinances, and the fact that the ordinance is invalid does not go to say that he has no jurisdiction, but only that there is no law to call for judgment. There is the ordinance colorably warranting the prosecution; but upon hearing it turns out, in law, not to warrant it; but that does not show absence of jurisdiction to hear and determine; does not show that there was not jurisdiction to start with. If the rule is otherwise, then you can prohibit any court from entertaining a case where there is no law to warrant judgment, or where the act is for any reason invalid. The mayor has the right to begin to consider; right to pass on his own jurisdiction, and you prohibit him from doing just what the law commands him to do, consider and determine. Appeal is the regular remedy. This case does not present a question of jurisdiction, but only raises the question whether there is any law to warrant conviction for the particular act. In this Court in late days prohibition is becoming appeal, writ of error and certiorari in anticipation of final decree or judgment. Jelly v. Dils, 27 W. Va. 267; Buskirk v. Judge, 7 Id. 91; dissenting opinion in N. & W. Co. v. Pinnacle Co., 44 Id. p. 583; County v. Boreman, 34 Id. 362; Haldeman v. Davis, 28 Id. 324. It is better that all courts go on to judgment, as presumably 'right decision will be attained, than to call them to a halt before we know whether they will decide
“Prohibition being an extraordinary writ, cannot be resorted to when the ordinary and usual remedies, such as appeal, writ of error, certiorari or other modes of review, or injunction are available.” 16 Ency. Pl. & Prac. 1130. I feel sure that Virginia, West Virginia and other American law is, in great weight and better reason, against the writ in this case.
Garry the other doctrine to its logical results. If chancery takes up g. case proper for a law court; if a circuit court enter