People ex rel. City of Albany v. Clute , 42 How. Pr. 157 ( 1871 )

Ingalls, J.

The writ of prohibition, although borrowed from the common law of England, from which we have derived so much that is valuable in our jurisprudence, is expressly recognized in the Revised Statutes of this state, where the practice under it is regulated {See 3d vol. Ií. S., page 899, 5th ed). It is also preserved by the 471st section of the Code. The antiquity of this remedy detracts nothing from its value any more than in regard to habeas corpus, mandamus, ne exeat, and injunction, all of which remedies have been incorporated into and have become so necessary a part of our judicial system. The writ of prohibition has been less frequently resorted to than the other remedies above mentioned, because the occasion therefor rarely occurs where there does not exist another réfriedy more usual and convenient. But there occasionally occurs a state of facts, and an emergency, when this remedy is remarkably appropriate and its operation salutary. Hence the infrequency of its use argues nothing against the validity or value of the process when appropriately applied. There is ordinarily but little ground to apprehend that serious injury or even inconvenience will arise from a resort to either of the remedies above mentioned, because the court or officer who grants the same can be applied to without delay, to modify or vacate the same. And if a proper motive actuates the tribunal in allowing the process, a corresponding motive will induce it to modify or vacate the same when the case requires it.

The courts have obviously been unwilling to encourage a too frequent resort to this writ, doubtless in order to avoid any abuse of the process, and hence have established certain rules applicable thereto, which are firmly and rigidly adhered to. One of which is, that this process shall not be resorted to where there exists another adequate remedy (Ex-paHe Eeaudlacht, 2 Sill, 367). Judge Cowen remarks : u The writ of prohibition, like mandamus, quo warranto, or certiorari, ought not to issue where there are other remedies perfectly adequate. We have a discretion to grant or deny the writ, and it would, I apprehend in general, be a very good reason for denying it, that the party has a complete remedy in some other and more ordinary form.” (The People ex rel. N. Y. S. Co. agt. The Court of Common Pleas of New York, 43 Barb., 278; The People ex rel. Brownson agt. The Marine Court of the City of New York, 36 Barb., 341; The People ex rel. Smith agt. Rumell, 29 How., 176).

We will proceed to determine whether the relators have any other remedy which is adequate, and which they should pursue. The statute, as amended, under which the proceedings in question are entertained by the county judge, provides as follows: u Review of proceedings under the acts hereby amended, shall be by certiorari, and no writ of certiorari shall be allowed unless said writ shall be allowed within sixty days after the last publication of notice of the judge’s final determination, as provided in section 2 of this act, and when such judgment is so entered prior to the passage of this act, unless said writ is allowed within sixty days after the passage of this act. On the return of the certiorari, the court out of which the same issued, shall proceed to consider the matters brought up thereby, and shall review all questions of law and of fact determined for or against either party by the county judge. And the said courts, or court of appeals, in appeals now pending and in all future proceedings, may reverse, affirm, or modify, in all questions of law or fact, his final determination, or may remand the whole matter back to said county judge, to be again heard and determined on by him. ' And it may, by order, direct that he proceed therein de novo, in the same manner and with the same effect as if he had taken no action thereon; or, it may by such order specify how and in what particulars he shall hear and determine the same, on such remanding the same. Applications for certiorari shall be on notice.”

It is apparent, that the legislature intended to provide a complete mode of reviewing such proceedings, both in regard to the law and the facts. The party aggrieved is entitled, by said statute, to a review as well in the court of appeals as in the supreme court, of the questions of fact and of law. So we perceive, that the remedy is adequate to redress any wrong or correct any error which may occur in the proceedings. The affidavits read upon this motion disclose the fact,- that forty-five or fifty witnesses have already been examined before the county judge on behalf of the petitioners, and upon the argument of this motion, it was stated by one of the counsel, that the evidence on' the part of the petitioners is nearly concluded, leaving substantially only such evidence as their opponents desire to produce. It further appeal’s, that the official term of said judge expires on the 31st instant, and another person is elected to succeed him in said office ; and it is insisted, that serious embarrassment will be occasioned by a suspension of the proceedings until the conclusion of the term of office of said judge, as it is at least possible, that all the evidence will be required to be retaken before another officer. These are considerations proper to be entertained, so far at least as they bear upon the exercise of discretion in determining whether the writ should pe continued. To jusify -a departure from an ordinary and complete remedy, and the adoption of one which may be regarded somewhat extraordinary, there should exist a reason therefor beyond the mere fact, that it is possible, or even probable, that the ordinary remedy may be more expensive. A proper degree of respect for a tribunal, whose proceedings are sought to be arrested, should always induce reasonable caution in exercising the authority invoked in this matter.

We have been referred by counsel to the case " In the Matter of the Application of Thomas Procet agt. John C. Hulburt, County Judge, &c., (51 Barb., 313,”) asan authority in favor of granting and continuing said writ. There is a marked distinction between the facts of that case and the one under consideration. In the case cited the proceedings were entertained by the judge under a special statute containing none of the provisions in regard to • the mode of review, prescribed by the statute in question. Again, in the case cited, the court held the statute, under which these proceedings were entertained, unconstitutional and void. In this case the relators allege irregularities in the proceedings under a statute which is not assailed on the ground that it is unconstitutional and void. In the case referred to, Judge James, in his opinion, remarks: u A writ of prohibition does not issue of course, it is always in the discretion of the court, and should not issue when the party has a complete and adequate remedy at law.” After a careful examination of the statute in question, and consideration of the facts developed upon this motion, I am convinced, that the rights of all parties will be more likely to be protected, and their interests promoted, by allowing the proceedings to continue before the county judge, and then reviewed in the manner prescribed by the statute under which he acts. Such a course will be more harmonious, much less complicated, and better accord with the rule of law to which we have referred. Having disposed of this motion upon the question above considered, it is neither necessary or profitable, to discuss the other questions argued, as they will arise upon a review of the proceedings of the county judge, before another tribunal. An order must be entered vacating and setting aside the writ of prohibition and all the proceedings under the same, and allowing the proceedings before the county judge to proceed. Ten dollars costs of this motion is allowed.