The opinion
Braotston, Judge,
(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 *77 right or wrong. Judge Moncure expressed a like opinion in Mayo v. James, 12 Grat. 17. See King v. Doolittle, 51 W. Va. 91 . The Supreme Court of the United States holds this doctrine. It says there must be no other remedy. “Where an inferior court has clearly no jurisdiction of a suit, and the de1-fendant has objected to its jurisdiction at the outset, and has no other remedy, he is entitled as a matter of right to a writ of prohibition.” Smith v. Whitney, 116 U. S. 167 . It makes no difference that the amount is too small for appeal. Ex parte Ferry Co., 104 U. S. 519 . “Where there is a plain and adequate remedy by appeal, prohibition will not lie.” In re Huguley, 184 U. S. 297 ; 22 Sup. Ct. R. 455. “But the sounder doctrine, and that sustained by the great preponderance of authority, is to the effect that prohibition only lies where the court either lacks jurisdiction of the subject matter, or having jurisdiction exceeds it in some incidental matter or in rendering judgment, and no appeal or writ of error or other remedy is available at all, or if available, is inadequate to meet the emergencies of the case, or to afford the relief to which the injured party is entitled.” Spell. Extra. Relief, sections 1725, 1727. I think these propositions are good law in Virginia Supervisors v. Wingfield, 27 Grat. 329. “It will not lie to restrain an inferior court from exercising jurisdiction in a particular case, if such court has jurisdiction of cases of that kind.” Haldermam v. Davis, 28 W. Va. 324 . “Like all other extraordinary remedies, prohibition is granted only in cases where the usual and ordinary forms of remedy are insufficient to afford redress.” High Extra. Rem. section 770. Hot to take the place of appeal. Id. section 771. “In the exercise of jurisdiction by prohibition it is important to distinguish between the nature of the action which it is sought to prohibit, and the sufficiency of the cause of action stated in the proceedings.” Id. section 767a.
“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 *78 tains an indictment for an offense when the statute on which it is based is unconstitutional or does not apply to it, or the common law makes it no offense; if a circuit court rejects a plea in abatement and compels the defendant to defend a suit having no jurisdiction over him; if the writ in an action is void; in these and many other eases prohibition would lie. Why not ?