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property and his business is stopped. If this ordinance of the municipality, though void, simply had the effect of imposing a criminal penalty, and did not have the effect of destroying property rights, even though it be in excess of jurisdiction, it might be argued with more force that there was a complete remedy by appeal and the writ of prohibition did not lie; but this is not the case.

It is further insisted that because the court has acted, and has convicted the party, a writ of prohibition will not lie to prohibit that which has already been done; but that the writ can be availed of only in a case where the court is attempting to act. In view of our statute, and the authorities upon this subject, we do not think this position is tenable. It is true the criminal prosecution is over; but the ordinance has a living, continuing, acting force, in that it is preventing Crittenden from the use of his property, and depriving him of his right to conduct his business, and thereby producing damage to him. Fear of enforcement of this void ordinance, and repeated arrests and prosecutions under it, have caused his business to be closed and his property to be rendered valueless. In the case of Donovan v. City of Vicksburg, 29 Miss. 247, 64 Am. Dec. 143, 285 where the city of Vicksburg undertook to pass an ordinance directing the city marshal to seize and sell all hogs found running at large in the city, it was held that such an ordinance was in excess of the power of the city of Vicksburg to pass, and void, and that it deprived the citizen of his property without due course of law, and the court sustained the right to issue a writ of prohibition to prevent any action being taken under the ordinance. In the case of Hughes v. Recorder's Court, 75 Mich. 574, 13 Am. St. Rep. 475, 42 N. W. 984, 4 L. R. A. 863, the city of Detroit undertook to pass an ordinance prohibiting sales of any articles in a certain market therein, except from stalls or stands leased or occupied by the sellers, and confining farmers and gardeners with their vehicles to certain other markets. The court held that the passage of such an ordinance was beyond the charter power of the city of Detroit, and void. The relator in this case was charged with a violation of this ordinance, and after conviction procured a writ of prohibition to restrain further proceedings under this illegal ordinance; and the court held in this case that it was proper to issue the writ of prohibition, and that an appeal was not an adequate remedy, and, after holding the ordinance void, said: "It follows that there can be no prosecution under it. It would be vexatious and unjust in so clear a case, where delay will

destroy the business, to turn over parties to submission to wrong or to the expense of the multifarious and persecuting prosecutions which it is evident that the city officials have been disposed to set in motion. The case is proper for restraint by prohibition, and the order for a writ should be made absolute." In the case of State v. Godfrey, 54 W. Va. 54, 46 S. E. 185, there was an application for a writ of prohibition, on the relation of the state, for one Atkinson, against Godfrey, the mayor of the town of Bramwell, in West Virginia. The substance of this case was that the town of Bramwell, being a municipal corporation, undertook to and did pass a certain ordinance. The petition alleged that the ordinance was invalid, that the town council had no authority to pass 286 such an ordinance, and that the warrants of arrest issued thereunder were without legal authority and void. The court held that, because the ordinance was void and of no legal effect, a writ of prohibition was proper. In the case last above cited will be found many authorities referred to and a lengthy discussion of this subject; all holding that where there is any attempt by a municipality to enforce a void ordinance, resulting in damage to property and multifarious and persecuting prosecutions, the remedy by appeal is not adequate, and therefore a resort to the writ of prohibition to put a stop to proceedings under the ordinance is proper. The case of McInerey v. City of Denver, 17 Colo. 302, 29 Pac. 516, was predicated of an application for a writ of prohibition. The city of Denver had passed an ordinance prohibiting the keeping open in the city of dramshops and tippling-houses between the hours of 12 o'clock midnight, Saturday, and 5 o'clock A. M. on the following Monday. The petitioner was arrested and fined for a violation of this ordinance. It was held by the court, for reasons stated in the opinion, that the ordinance was void. For violation of the ordinance it was provided that there should be both a fine and imprisonment, and it was further provided that for a second violation there should be a forfeiture of license to sell liquors. The court held that: "The ordinance relating to Sunday closing is invalid, and the procedure provided for the police magistrate illegal; hence, even if the court be lawfully constituted, it is exercising a jurisdiction for which there is no warrant in law. While these questions might be considered upon a trial upon appeal, and likewise upon writ of error to the county court, in view of the fact that, besides an illegal forfeiture, an illegal imprisonment might in the meantime be suffered, we are not prepared to say that the remedies thus provided are adequate.

We conclude that, under all circumstances, our discretionary power in the premises should be favorably exercised, and the writ of prohibition should issue." In the case of People v. House, 4 Utah, 369, 10 Pac. 838, it was held that: "Where a justice 287 of the peace has tried and determined a case of which he had no jurisdiction, a writ of prohibition from a superior court arresting all further proceedings under the judgment is a proper remedy. Although an appeal would lie from the judgment, an appeal is not an adequate remedy in such case." In the case of Zylstra v. Corporation of Charleston, 1 Bay (S. C.), 382, it was held in a case where the city of Charleston had passed an ordinance in excess of its power conferred by charter, and therefore void, and where one Zylstra had been convicted of a violation of this ordinance, that it was proper by writ of prohibition to prohibit the city of Charleston from further proceeding to execute the ordinance, because, the conviction of Zylstra being nugatory, the action of the municipal authorities should be stayed. To the same effect is the case of Sweet v. Hulbert, 51 Barb. (N. Y.) 312. The case of Ex parte Richardson, 1 Harp. (S. C.) 308, was a case where a justice of the peace was acting in excess of his jurisdiction, and a writ of prohibition was applied for and granted, and the court said, on page 311: “It is suggested, however, that as the court had passed sentence, and the sentence was in part executed, the prohibition could not issue, for there was nothing to prohibit. This would be a most unfortunate state of things, for in most cases these inferior tribunals proceed with such expedition that it is impossible to stay their proceedings before they give judgment and pronounce sentence. The proceeding by prohibition is intended to restrain these subordinate jurisdictions within their prescribed limits." In the case of Crisler v. Morrison, 57 Miss., on page 802, the court said: "It is, however, said that the right of appeal was given by the statute, and when such right is given the writ will not be issued. If this tribunal is conceded to have enough of colorable judicial authority to authorize it to grant an appeal, still the rule invoked will not apply here. It is unnecessary to determine exactly the rule by which the courts are governed in refusing to grant the writ, because an appeal or writ of error or of certiorari will lie. 288 It is certain that, when it is refused on that ground, the remedy by revisory proceedings must be adequate. In this case the remedy is not adequate to the mischief either to the contestee or to the public. Morrison would be deprived

of the emoluments of the office till the adverse judgment could be reversed.”

It thus appears, from the authorities cited, that the better reasoning is that whenever an inferior court proceeds to act in excess of its jurisdiction, and whenever, as incidental to its action, it involves an infringement of property rights, or a submission to multitudinous and persecuting prosecutions in such way as to make its acts oppressive, there is no adequate remedy by appeal, and it is proper to issue the writ of prohibition; and this is true, whether the court in which the proceeding is instituted has acted or not, if the effect of the void authority under which it is assuming to act stands as a vexatious menace to personal liberty or the destruction of property rights. It follows that the discharge of the writ of prohibition by the learned court below was error. The court should have sustained the writ.

The writ of prohibition is therefore reinstated, and the cause is reversed and remanded.

As to Whether the Keeping of Devices which may be used for gambling or for innocent and lawful purposes, may be regarded as wrongful per se, see State v. Derry, 171 Ind. 18, ante, p. 237; note to Acme Fertilizer Co. v. State, 107 Am. St. Rep. 230. Keeping a poolroom to which there is common resort for betting on horseraces is per se a nuisance at common law: Ehrlick v. Commonwealth, 125 Ky. 742, 128 Am. St. Rep. 269.

The Writ of Prohibition is the subject of a note to State v. Superior Court, 111 Am. St. Rep. 929.

COVINGTON COUNTY v. COLLINS.
[92 Miss. 330, 45 South. 854.]

HIGHWAYS-Operation of Traction Engine.-The daily operation of a traction engine, with from two to four wagons attached, in a public highway, is an improper use, which may be forbidden by the board of supervisors. (pp. 529, 531.)

HIGHWAYS-What Use Constitutes Nuisance.-Whether or not a particular use of a highway, such as the operation of a traction engine, constitutes a nuisance is not determinable alone by the adjudication of the board of supervisors to that effect, for the question is one of law, but its judgment is very persuasive. (p. 529.)

HIGHWAYS-Consent or Objection to Unlawful Use.-If there is a single person along a public highway who objects to its unlawful use by running a traction engine thereon, it is immaterial how many other persons along the road petition to permit such use. (p. 530.)

Bill to enjoin Collins from running a traction engine on the county highway in violation of an order passed by the board

of supervisors declaring the use of the county highway by traction engines to be unlawful, and prohibiting such use under penalty. Collins, being temporarily enjoined, made answer to the bill, alleging, among other things, that while a few citizens objected to such use, many others had voluntarily petitioned the board of supervisors to allow him to operate his engine on the county roads. The cause was heard on motion to dissolve the injunction.

R. L. & E. L. Dent and R. V. Fletcher, attorney general, for the appellant.

T. S. Howell, for the appellee.

335 MAYES, J. According to the testimony of Collins himself, it is shown that the traction engine was operating over a public road leading 336 to his two mills, and that it made one or two trips a day. The time required to make these trips was an average of fifty-five minutes going and coming, and the distance it traveled over the highway was about two and one-half miles. One trip would be made in the morning and one in the afternoon. The lumber hauled by the traction engine was hauled by means of wagons coupled to the engine and to each other, and on these wagons the lumber was loaded, and the amount carried on each wagon would average about eighteen hundred to two thousand feet. To this traction engine were coupled from two to four wagons. It is not shown by any testimony that the running of this traction engine in this way damaged the road itself, but actual damage to the road is not the only question in this case to be considered. There is a great deal of other testimony-some of the witnesses testifying that they were inconvenienced by the running of this traction engine; others testifying that the road was made dangerous for travelers by reason of the fact that their teams were frightened, and that they would have to take by paths to pass around this engine when it was approaching, etc. It was the judgment of the board of supervisors of the county that the running of this traction engine was detrimental to the use of the road by the public, and that it constituted an obstruction to the highway, and was a nuisance, and they ordered it discontinued.

This is not a case of occasional use of the highway for the passage of this traction engine for the purpose of transporting it from one place to another; but the record shows that the road is being used for the purpose of running this traction engine between the two mills and hauling lumber. In 15 Am

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