Opinion of the Court-Fitzgerald, C. J.

and excuse for his failure to make the payments set up his inability to make the same. On the hearing of the application for alimony, etc., the court after examination had made the following finding of fact: "That defendant has property, real and personal, and for more than thirty years last past has been in the main employed, and has earned a monthly competence more than sufficient to support himself and family, and is now so employed." No other finding of fact was ever made, except the finding that the petitioner did not comply with the order for payments. Subsequently the court, presumably on said finding, made an order that the petitioner be committed to the county jail until he made said payments. This finding is fatally defective. It is inadequate to sustain the order committing him to jail. First-It does not find as a fact that the petitioner was able to comply with the the order of the court to make the payments required of him. Second-It does not find the facts from which such ability could be reasonably inferred. It finds that the petitioner "had property," and that he had been employed for many years. Both of said facts may have been true, and yet the petitioner may have been totally unable to comply with the order of the court to make the payments required of him. He may have had property, but totally insufficient for the demands made upon him; and he may have been employed as stated, and yet all the money coming from such employment may have been spent, and, moreover, legitimately and properly spent. It should be stated that the affidavit on which the contempt proceeding was started did not allege the petitioner's ability to make the payments required of him, or such facts that such ability might be properly inferred therefrom.

The affidavit showed no more than did the finding, and the affidavit itself is jurisdictional. See the following: Comp. Laws, 3564; Adams v. Haskell, 6 Cal. 316, 65 Am. Dec. 517; Ex parte Spencer, 83 Cal. 460, 23 Pac. 395, 17 Am. St. Rep. 266; Galland v. Galland, 44 Cal. 478, 13 Am. Rep. 167; Ex parte Cottrell, 59 Cal. 421; Ex parte Gordan, 95 Cal. 377, 30 Pac. 561; Ex parte Robertson, 27 Tex. App. 628, 11 S. W. 669, 11 Am. St. Rep. 207; State ex rel. Olson v. Allen,

Points decided.

14 Wash. 684, 45 Pac. 644; Phillips v. Welch, 12 Nev. 164; Batchelder v. Moore, 42 Cal. 414; 9 Cyc. 38; Toring v. Cannon, 2 Utah, 594.

The order of the court committing petitioner to jail was without its jurisdiction, and is therefore void.

Ordered that petitioner be released from imprisonment forthwith.

[No. 1692.]

ABRAHAM CHAPMAN, PETITIONER, v. THE JUSTICE COURT OF TONOPAH TOWNSHIP, COUNTY OF NYE, STATE OF NEVADA, AND HON. J. P. BRISSELL, THE JUSTICE OF THE PEACE PRESIDING IN SAID COURT, RESPONDENTS.

1. CRIMINAL LAW-CERTIORARI-EXISTENCE OF REMEDY BY APPEAL. Comp. Laws, 3531, provides that certiorari may be granted in all cases where an inferior tribunal or officer, exercising judicial functions, has exceeded the jurisdiction of such tribunal or officer, and there is no appeal, nor any plain, speedy, and adequate remedy, Comp. Laws, 2528, 4644, in substance provide that in any criminal action defendant may appeal from any judgment of a justice of the peace to the district court. Held, that certiorari does not lie from the supreme court to review a conviction before a justice on the ground that the statute authorizing the conviction is unconstitutional, since the constitutional question may be raised before the justice and an appeal taken from any judgment rendered by him.

2. SAME-SCOPE OF REMEDY. Certiorari will lie from the supreme court to review a judgment by the district court rendered on an appeal from a conviction before a justice of the peace, though it is claimed that the district court as well as the justice court has no jurisdiction. 3. SAME-RIGHT OF REVIEW-WAIVER.

After the issuance by the supreme court of a writ of certiorari, it was not too late to question the jurisdiction of the court to proceed under it, the motion to quash and dismiss the writ having been made at the first opportunity at the hearing, and argued before the argument upon the merits, and especially in view of the fact that the writ was issued without a hearing, on the understanding that opposing counsel reserved the right to question the appropriateness of the remedy upon the hearing on the return of the writ.

4. SAME REMEDY BY APPEAL-LAPSE OF TIME FOR APPEAL. Comp. Laws, 3531, provides that certiorari may be granted in all cases where an inferior tribunal or officer, exercising judicial functions, has exceeded the jurisdiction of such tribunal or officer, and there is no appeal, nor any plain, speedy, and adequate remedy. Held, that certiorari will not lie in a criminal case merely because the time for taking an appeal has been suffered to elapse.

FITZGERALD, C. J., dissenting.

Argument for Respondents.

ORIGINAL PROCEEDING. Certiorari by Abraham Chapman to review his conviction of a misdemeanor before the Justice Court of Tonopah Township, Nye County, State of Nevada. Writ dismissed. Petition for rehearing. Denied.

The facts sufficiently appear in the opinion.

A. R. Needles and E. P. Moran, for Petitioner.

James G. Sweeney, Attorney-General, and W. B. Pittman, District Attorney of Nye County, for Respondents:

I. The writ of certiorari is not the proper remedy in this cause, for the reason that petitioner has a plain, complete, speedy, and adequate remedy by an appeal to the District Court in and for Nye County. Section 3531 of Compiled Laws provides that "The writ shall be granted in all cases when an inferior tribunal, officer, or board exercising judicial functions has exceeded the jurisdiction of such tribunal, board, or officer, and there is no appeal, nor, in the judgment of the court, any plain, speedy, and adequate remedy."

II. The writ of certiorari lies only in those cases in which in the exercise of judicial functions an excess of jurisdiction has occurred, and in which "there is no appeal," etc. Unless the case be brought within both these conditions, the writ must be dismissed. (Connery v. Swift, 9 Nev. 39; Bennett v. Wallace, 43 Cal. 25; Miliken v. Huber, 21 Cal. 166; Faust v. Mason, 47 Cal. 7; Tucker v. San Francisco County and City Justice Court, 120 Cal. 512; Nevada Central R. Co. v. District Court, 21 Nev. 409; People v. County Judge, 40 Cal. 479; Newman v. Superior Court, 62 Cal. 545; Cereghino v. Finichio, 54 Cal. 603; McCue v. Superior Court, 71 Cal. 545; Weill v. Light, 98 Cal. 193; Lewis v. Gilbert, 5 Wash. 534; Seattle and M. R. Co. v. State, 5 Wash. 807; Slavonic Illyric Mut. Ben. Assn. v. Superior Court of Santa Clara County, 4 Pac. 500; In re Stuttmeister, 71 Cal. 322.) The test by which to judge of defendant's right to the writ of certiorari is not whether he has a right to appeal to the supreme court of the state, but whether or not he has a right of appeal from the inferior court to any superior court. Section 4644 of the Compiled Laws provides that the defendant may appeal to

Argument for Respondents.

the district court of the county from any judgment rendered in the justice court or other inferior tribunal in a criminal action; and that the action in the appellate or district court shall be tried de novo. Defendant could there raise the question of the constitutionality of the law under which the complaint is drawn, and his remedy would be plain, speedy, and adequate. Section 2528 also gives the district courts jurisdiction to hear and determine appeals from justice or other inferior courts in all cases of a criminal nature. "It is a rule of general application that certiorari is not an appropriate remedy if efficient relief can be, or could have been, obtained by a resort to other available modes of redress or review." (6 Cyc. p. 742, and a long line of cases therein cited.)

III. A party is not entitled to the writ if he fails to exercise due diligence in protecting his interests in the action or proceeding in question. (Herman v. Butler, 59 Ill. 225; Reilly v. Prince, 37 Ill. App. 102; People v. Woods, 39 N. Y. App. Div. 660.) The writ will not be awarded unless the party has first applied to the primary court or to a superior court for relief, or shows that they are incompetent to set in the matter, or that such an application would be futile. (Ex parte Boynton, 44 Ala. 261; Ex parte Marr, 12 Ark. 84; State v. Gill, 137 Mo. 627; Lewis v. Brewer, 51 Me. 108; State v. Meyer, 52 La. Ann. 255.) Petitioner herein should have appealed from the judgment of the justice court to the district court. Should the district court have decided adversely to defendant, the offense being that of a misdemeanor and no appeal lying therefrom to this court, he then would have been entitled to his writ of certiorari to test the jurisdiction of both lower courts. He should have first exhausted his appellate remedy. Certiorari is not concurrent with appeal in this state, otherwise his petition should be granted. The writ of certiorari is not a writ of right unless so made by statute, and the court to which application is made is vested with judicial discretion to grant or refuse the writ. (Woodward v. Gibbs, 61 Iowa, 398; Special Drainage Dist. v. Griffin, 134 Ill. 330; Burnett v. Douglas County, 4 Or. 388; People v. Board of Police

Opinion of the Court-Norcross, J.

Commissioners, 82 N. Y. 506; Libby v. West St. Paul, 14 Minn. 248.)

By the Court, NORCROSS, J.:

This is an original proceeding in certiorari. The abovenamed petitioner was, on the 21st day of April, 1906, convicted in the Justice Court of Tonopah Township, County of Nye, upon a charge of misdemeanor in having violated the provisions of that certain act of the legislature of this state, entitled "An act to provide for licensing itinerant and unsettled merchants, traders, peddlers and auctioneers," approved March 24, 1905. (Stats. 1905, p. 260, c. 53.) It is claimed by petitioner that the said justice court was without jurisdiction in the premises, because the act under the provisions of which the petitioner was convicted is unconstitutional. This proceeding is brought to review and annul the judgment.

Upon the hearing upon the return of the writ, the respondents appeared by their attorneys and moved to quash and dismiss the writ upon the following grounds: "That the writ of certiorari is not the proper remedy in this case for the reason that petitioner has a plain, complete, and adequate remedy by an appeal to the District Court of the Third Judicial District, in and for Nye County, State of Nevada; that the petition in this cause does not contain facts sufficient to warrant this court in issuing said writ." Counsel for petitioner, in their brief, set forth five reasons why they claim that certiorari is a proper remedy herein, as follows:

"First-That there is no appeal under the law, in this case. Second-That respondents' motion to quash comes too late, and cannot be entertained, the discretionary stage having passed with the issuance of the writ; and respondents having filed their return thereto have acknowledged the jurisdiction of this court to hear and determine this question. ThirdThat even though the right of appeal existed in this case under the law, it could afford no adequate remedy, and therefore certiorari is a proper and is the only proper proceeding. Fourth-That even though the right of appeal existed, cer