34 Nev. 146 | Nev. | 1911
This is an original proceeding in prohibition. The proceeding grows out of a state of facts, some of which are identical with those involved in the mandamus case against the same respondent (No. 1953; 34 Nev. 128.) The petitioner alleges that she made application for two certain lots to the respondent as trustee of the Goldfield townsite, which application was allowed, but that the amount assessed against said lots by the trustee was $17. Believing that said amount was largely illegal and excessive, and being so advised, she refused to pay
Section 8 of the act approved February 20, 1869, as amended March 5, 1877 (Comp. Laws, 346), reads in part as follows: "If all the lots, blocks, shares, or parcels of such land are not legally conveyed to the proper owners before the expiration of one year after the same shall have been passed upon by the corporate authorities or judge, or, in case of contest, within thirty days after such contest shall have been finally determined, the same shall be sold to the highest bidder, and the proceeds applied to the erection of public buildings for the benefit of such city or town, or to the construction of water-works for the purpose of conveying water into such city or town, after paying their proportionate share of the purchase money and other expenses incurred by publication and sale.” The respondent is proceeding to sell under the provisions of section 8, supra. As we stated in the mandamus case, the petitioner here is not in a position to question the regularity of the original notice to claimants of lots, and hence cannot base any alleged irregularity in that notice as a ground of attack upon the validity of the notice of sale under section 8, supra.
Whether this is an appropriate case for the issuance of the writ of prohibition presents a question upon which the court has found some difficulty in reaching a conclusion. The case is sui generis. The respondent became trustee by virtue of his office as district judge under the provisions of the federal and state statutes governing the
In that case we regarded the determination of the amount which -the trustee was entitled to impose as an exercise of a duty judicial in character. Whether or not he went beyond the limitations of the statute was not a matter which his colleague on the bench could determine by a proceeding in mandamus, for the reason that the law of mandamus does not regard a person performing a duty or trust by virtue of his office as a judge as inferior to another judge of equal judicial power, though the former is not acting strictly in his capacity as judge.
The constitution of this state gives this court the powér to issue writs of prohibition. There are no statutory provisions now in force regulating its exercise. It is an ancient common-law writ, and whatever functions it had at common law this court now possesses. This court in a number of cases has had occasion to issue the writ to inferior courts, and has not before had occasion to consider whether more extensive powers may be exercised under it. The general rules governing the issuance of the writ have been often stated by this court and need not be repeated here, but in every instance where this court
High, in his work on Extraordinary Legal Remedies, in section 762, says: "The writ of prohibition may be defined as an extraordinary judicial writ, issuing out of a court of superior jurisdiction and directed to an inferior court, for the purpose of preventing the inferior tribunal from usurping a jurisdiction with which it is not legally vested..”
In section 764a the same author says: "The appropriate function of the remedy is to restrain the exercise of unauthorized judicial or quasi-judicial power, which is regarded as a contempt of the state or sovereign, and which may result in injury to the state or to its citizens. Three conditions are necessary to warrant the granting of the relief: First, that the court officer, or person against whom it is sought is about to exercise judicial or quasi-judicial power; second, that the exercise of such power is unauthorized by law; third, that it will result in injury for which no other adequate remedy exists. And the remedy may be invoked against any body of persons or officers assuming to exercise judicial or gwasi-judicial powers, although not strictly or technically a court.”
While the great function of the writ of prohibition is to restrain courts and judicial tribunals from exceeding their jurisdiction, and most of the cases where the writ has issued are of this character, nevertheless the writ has not been restricted exclusively to such class of cases, but it has run to other officers exercising or attempting to exercise judicial or gwasi-judicial functions beyond their powers, where no other adequate remedy existed. Examples of cases of the latter character may be found in the following authorities:
In New York the writ was held to be properly issued to restrain a mayor from hearing and determining charges preferred against a police or fire commissioner. (People v. Sherman, 66 App. Div. 231, 72 N. Y. Supp. 718; same case on appeal, 171 N. Y. 684, 64 N. E. 1124.)
The writ has been issued in Alabama requiring a judge
That the common-law writ of prohibition is not confined exclusively to courts or judicial tribunals was held to be the law by the constitutional court of South Carolina in the early case of State v. Commissioner of Roads, 1 Mill. Const. 55, decided in 1817, and reported, with elaborate note, in 12 Am. Dec. 597. From that decision we quote the following: "Thus it would seem, if we pursue these principles that the courts have authority by this proceeding to supervise the execution of the laws, not merely by keeping inferior tribunals within their proper jurisdiction, but also by enforcing a correct execution of the laws, as well the common as the statute law. To the generality of this rule there will, of course, be exceptions pointed out by the nature and object of this proceeding. If, then, the authority of these courts be thus extensive, and such be the objects of this proceeding, what reason can there be to limit its operation merely to the regulation of inferior courts ? Why should it not extend to other public functionaries who are charged with the execution of the laws, and to corporate bodies whose existence and whose privileges are an
In State v. Young, 29 Minn. 474, 523, 9 N. W. 737, 738, the court, considering a similar question, said: "The writ of prohibition issues usually to courts to keep them within the limits of their jurisdiction. But it may also issue to an officer to prevent the unlawful exercise of judicial or quasi-judicial power; and, the other reasons for it existing, we see none why it should not issue to a person or body of persons not being in law a court, nor strictly officers. * * * Three things are essential to justify the writ: First, that the court, officer, or person is about to exercise judicial or quasi-judicial power; second, that the exercise of such power by such court, officer, or person is unauthorized by law; third, that it will result in injury for which there is no other adequate remedy. ”
In the case under consideration, which as before stated is sui generis, the trustee will sell, unless prevented by some procedure, the lots of petitioner, and others similarly situated, at public auction under the provisions of section 8, supra. If permitted, this sale of the lots, to which petitioner is entitled upon paying the legal charge, will take place because of the fact that respondent has demanded therefor an amount of money in excess of his power to impose. The law invests the trustee with power to sell lots which are not legally conveyed to the proper owners before the expiration of one year after the same shall have been passed upon by the judge. Deeds to the lots in question have been made out, and have not been delivered because of an excessive charge of the trustee, beyond his power to impose. The law will regard that as done which ought to have been done, and will hold that the failure to deliver the deeds does not bring the lots in question strictly within the provisions of section 8, supra, so as to cut off the privilege of the lot claimant from' paying the maximum charge which the trustee might impose at any time prior to sale. The respondent ought not to be permitted to sell the lots of petitioner and others similarly situated so long as they stand ready to pay such maximum amount.
As we held in the mandamus case, $5.50 is the maximum charge which the trustee can lawfully impose for the first lot under the provisions of section 7 of the act of 1869, swpra, and section 5 of the supplementary act of 1871, supra. For additional lots this charge is reduced by $2 under the provisions of said section 7, so that the maximum charge against an individual purchaser of more than one lot is $5.50 for the first lot and $3.50 for each additional lot. Petitioner herein was, and is therefore, entitled to the trustee’s deed for the two lots described in the petition upon paying the petitioner the sum of $9. We think it justly due the trustee to say that in making the charges he did he acted as he believed the statute warranted, and that his construction of the same resulted only from an honest difference of opinion, and not from any desire to impose an excessive charge. These cases are of public advantage, in that they have afforded an opportunity to settle the construction of provisions of the statute in which there has been no little conflict of opinion.
It is ordered that the writ issue prohibiting respondent from selling petitioner’s lots, or the lots of any other claimant similarly situated and who regularly filed a claim for a lot or lots with the respondent, provided she or they pay or offer to pay to respondent the sum of $5.50 for a single lot, and at the rate of $8.50 for additional lots included in same deed, so claimed at any time prior to the day hereafter to be fixed by respondent for the sale of unconveyed lots, and, provided further, that the date of the sale of all other lots at public auction be made not less than ten days from the date of service of the writ or a copy of this order, and that, subject to the provisions of this order, the temporary restraining order heretofore made be and the same is hereby vacated.