Montgomery County Appeals.

The writ must be confined to occasions and causes where the usual procedure is defective or inadequate and where it becomes necessary to subserve the ends of justice.

No better statement of the objects and purposes of the writ can be found than in Walcott v. Wells, 21 Nev. 50 [24 Pac. Rep. 367]:

"The writ of prohibition is an extraordinary remedy, and should be issued only in cases of extreme necessity. Before it should issue, it must appear that the petitioner has applied to the inferior tribunal for relief. The object of the writ is to restrain inferior courts from acting without authority of law in cases where wrong, damage, and injustice are likely to follow from such action. It does not lie for grievances which may be redressed, in the ordinary course of judicial proceedings, by appeal. It is not a writ of right, but one of sound judicial discretion, to be issued or refused according to the facts and circumstances of each particular case. Like all other prerogative writs, it is to be used with caution and forbearance, for the furtherance of justice and securing order and regularity in judicial proceedings in cases where none of the ordinary remedies provided by law are applicable."

Spelling, Extra Rel. Sec. 1731, says:

"The extraordinary remedy by prohibition is confined at present, as when first employed, only to cases where it appears that the party seeking has an actual grievance and has applied without avail to the inferior tribunal for relief."

The authors of Cyc. (32 Cyc. 624), thus summarize the American and English authorities:

"An application for a writ of prohibition will not be considered, unless a plea to the jurisdiction has been first filed and overruled in the lower court. Until the inferior court has been asked in some form, and without avail, to refrain from proceeding with the trial of a case, or to dismiss the same, a superior court will not entertain an application for a writ of prohibition."

Exceptions to the rule are noted in the text, but none ap

Oldham, Ex parte.

ply to the present proceedings. Conflicting decisions are also noted.

Many of the cases cited by counsel for the petitioner acknowledge the general rule but originate and justify exceptions growing out of special circumstances. Some, notably the Arkansas and Colorado cases, are followed by subsequent cases in the same courts acknowledging the general rule.

Little Rock, Ex parte, 26 Ark. 52:

"Prohibition will not lie to an inferior court, in a cause arising out of its jurisdiction, until that matter has been pleaded in the original court and the plea refused.

"The circuit court will not be presumed to take cognizance of matters not within its jurisdiction."

Adams County Court v. People, 48 Colo. 539 [111 Pac. Rep. 86]:

"A petition to have a court prohibited on the ground of lack of jurisdiction from further proceeding in a criminal contempt proceeding is insufficient; it not showing that the jurisdiction of such court was challenged by appropriate plea or motion therein, so as to give it opportunity to pass on the question, as it is not to be assumed that, had the question been raised there, it would not have correctly ruled thereon."

Chester v. Colby. 52 Cal. 516:

"If the question of the jurisdiction of an inferior court in a case before it has been submitted to that court by an appropriate pleading or objection, a writ of prohibition will not issue to restrain such court from proceeding in the case while the question of its jurisdiction remains undetermined by such court."

Oklahoma, Ex parte, 220 U. S. 191, 208 [31 Sup. Ct. Rep. 426; 55 L. Ed. 431];

"It is firmly established that where it appears that a court whose action is sought to be prohibited, has clearly no jurisdiction of the cause originally, a party who has objected to the jurisdiction at the outset and has no other remedy, is entitled to a writ of prohibition as a matter of right."

The argument is made that when the constitutional conven

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tion of 1912 submitted and the people adopted this judicial amendment, it was intended thereby to revive the common law writ as interpreted and practiced in the English courts.

This court will take judicial notice that eminent lawyers of the state were members of the constitutional convention and took a leading part in framing this judicial amendment.

It is, in our opinion, a more probable inference that the eminent lawyers who framed this amendment and the citizens who adopted it contemplated the writ as known in this state by the practice in the federal court. This inference is strengthened by the close analogy existing between the judicial amendments in other respects to the federal practice.

The general rule above announced is especially applicable to the present proceedings. The enterprise at hand is one of great magnitude and importance. The conservancy act is of necessity comprehensive in its general scope and embraces many details.

The court specially charged with jurisdiction under the conservancy act consists in the present instance of ten judges. of the court of common pleas, from the counties affected. These judges from the various courts are learned in the law, and experienced in constitutional interpretation. We think it would be an unjustifiable inference to be indulged in by this court that the conservancy court will not fully consider and correctly determine the constitutional as well as all other questions submitted. If the law should be wrongly interpreted by the conservancy court, there will still be ample opportunity for intervention in an appropriate court before the property of the petitioner can be affected.

For the reasons above stated, the writ of prohibition will be denied, and the petition therefor dismissed.

Ferneding and Kunkle, JJ., concur.

Jennings v. Shepherd.

ARREST-MALICIOUS PROSECUTION.

[Pickaway (4th) Court of Appeals, May 28, 1914.]

Walters, Sayre and Jones, JJ.

FRANK S. JENNINGS V. CHARLES SHEPHERD,

Discharge of Accused by Examining Magistrate Prima Facie Evidence of Want of Probable Cause.

In a suit for malicious prosecution, proof that the defendant filed an affidavit, in a mayor's court, charging the plaintiff with forgery and that, in consequence, he was arrested and imprisoned, and that, on the preliminary hearing, after witnesses were sworn and examined he was discharged, is prima facie evidence of want of probable cause.

ERROR.

Plaintiff in error defendant in the court of common pleas, filed an affidavit, in the mayor's court of Circleville, charging Shepherd with forgery.

The defendant in error was arrested and imprisoned, and after a trial by the mayor, in which witnesses for the state and defendant were examined, he was discharged. He thereupon brought this action for malicious prosecution and recovered a judgment for $400.

C. A. Leist and G. G. Adkins, for plaintiff in error.

George W. Morrison and Charles Gerhardt, for defendant in error.

SAYRE, J.

The trial court charged the jury as follows:

"The fact that the mayor discharged the plaintiff because he did not find him guilty of the charge on which he was arrested is prima facie evidence that said criminal prosecution and arrest was without probable cause, but it is not conclusive evidence thereof. By prima facie evidence it is meant such evidence as creates a presumption that these facts are established by it in the absence of any evidence to the contrary. In other words, it is a sufficient way to establish the disputed facts

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until they are rebutted or overcome by evidence to the contrary."

It is contended on behalf of plaintiff in error that proof of a discharge by an examining magistrate is not prima facie evidence of want of probable cause and that the question has been decided by the case of John v. Bridgman, 27 Ohio St. 22, 39. But it will be seen that the statement of Judge Whitman, who wrote the opinion in that case, is an obiter dictum, because when he used the language that "the mere fact of acquittal and discharge by the magistrate was not enough" to show want of probable cause, he was discussing the question as to whether the plaintiff in the suit for malicious prosecution could show that no evidence was offered, before the magistrate, by the complainant to establish the charge contained in the affidavit. The question as to whether such discharge is prima facie evidence of want of probable cause was not one of the assignments of error and did not arise in the case.

Section 13511 G. C. provides:

"When the accused is brought before the magistrate and there is no plea of guilty, he shall inquire into the complaint in the presence of said accused. If it appear that an offense has been committed and that there is probable cause to believe the accused guilty he shall order him to enter into a recognizance *** otherwise he shall discharge him." ***

By virtue of Sec. 4542 G. C. the mayor of Circleville had the jurisdiction conferred in Sec. 13511 on a charge of forgery.

Hence, the question inquired into, by the magistrate, and the one he had authority to determine, was the one as to probable cause, and a finding was made that there was no probable cause to believe that Shepherd was guilty of the crime of forgery.

Was this finding prima facie evidence of a want of probable cause in this case?

The decisions of courts of last resort on this question are not in harmony. The following is a partial list of those holding that the discharge, by the magistrate, on a preliminary hearing, is prima facie evidence of the want of probable cause: