Rust v. Stewart , 7 Idaho 558 ( 1901 )

QUARLES, C. J.

This is an original proceeding to obtain a writ of prohibition restraining the district court of the third judicial district sitting in and for Ada county, from proceeding to hear and determine, de novo, an appeal from an order made by the board of commissioners of Ada county, sitting as a board of water commissioners, fixing a maximum rate of compensation for water to be delivered during the year 1901 by the Boise City Irrigation and Land Company to the petitioners. From the petition it appears that the district court is about to and will hear and determine said appeal de novo, and will do so unless restrained by the process of this court, contrary, as claimed by the petitioners, to the provisions of the act of February 25, 1899, relating to the appropriation, use, and rental of waters. (See Acts 1899, pp. 380-387, inclusive.) Section 29 of said act contains the following proviso, to wit: “Provided, that an appeal or writ of error shall be in behalf of the proprietor of such works, or any person using or claiming to be entitled to use water therefrom, for review in the district court.” It appears from the petition that a large number of persons using water from the canal of said Boise City Irrigation and Land Company petitioned the board aforesaid to fix the rate of compensation for water to be furnished by said company to said users for the year 1901, and that after notice and hearing the said board made an order fixing the said rate of compensation for the year 1901, from which order the said irrigation company appealed to the district court, and that said court had held and determined that said appeal should be tried de novo, and had made an order setting said proceeding, brought before it by said appeal, for hearing de novo.

The writ of prohibition is an extraordinary remedy, which is sometimes granted, not as matter of right, but in the sound discretion of the court, to restrain an inferior tribunal from exceeding its jurisdiction. Being an extraordinary writ, it should not issue in doubtful eases, nor in any case where a plain, speedy, and adequate remedy in the ordinary course of law exists. In this case it appears that a hearing of the said appeal will be speedily had in the district court. This court will be in session, in regular term, in May next. The action of the district court may be reviewed in this court in the ordinary course of law, as it .is evident that under the provisions of our state constitution, the provisions of our code, and former rulings of this court, the decision of the district court in any and all eases may be reviewed in this court. If an appeal is not authorized, then a writ of error or certiorari will lie.

We cannot hold in this proceeding that the district court has no jurisdiction, as the statutes under consideration expressly provide for an appeal or writ of error to the district court, nor can we presume, in advance of the action of the district court, that it will exceed its jurisdiction; for which reason, and the further reason that an adequate remedy exists to bring the decision of the district court before this court for review, we think that the alternative writ heretofore issued should be discharged, and the peremptory writ demanded should be denied;, and it is so ordered. Costs awarded to the defendant.

Sullivan and Stockslager, JJ., concur.