Opinion of the Court-Norcross, J.

tiorari would not thereby be inhibited. Fifth-That for the purpose of the hearing on respondents' motion, the allegations of the petition as to the unconstitutionality of the law in question are to be taken as true, and the court should proceed to hear the case on the merits."

The section of the practice act of this state governing the issuance of the writ of certiorari reads as follows: "This writ may be granted on application by any court of this state, except a justice's, or recorder's, or mayor's court; the writ shall be granted in all cases when an inferior tribunal board, or officer, 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." (Comp. Laws, 3531.)

The contention is made that there is no appeal from the judgment of the justice of the peace for the reason that he had no jurisdiction to try the case, because of the alleged fact that the law, under which the case was prosecuted, is unconstitutional. Furthermore, that there is no legal method of raising the question of the unconstitutionality of a law in a justice's court. Counsel cite no authorities supporting their contention in this respect, and we think their position clearly untenable. It is the practice to raise questions of jurisdiction, and questions which go to the sufficiency of the complaint to charge a public offense, in the justice court, as well as in the district court. It is not reasonable that the legislature intended to provide a system of criminal practice in justice courts that would not permit a defendant raising questions which go to the right or propriety of the justice proceeding with a trial of the case. (Cowdery's Justices' Treatise, vol. 2, 2267, 2268.)

If a justice proceeds to try a case upon the theory that a statute, which is involved in the action, is valid when it is not, a judgment rendered in the case may be void, but the right of appeal would still lie. (Comp. Laws, 2528, 4644; Hastings v. Burning Moscow Co., 2 Nev. 97; Jumbo Mining Co. v. District Court, 28 Nev. 253, 81 Pac. 153; Ex parte Rosenblatt, 19 Nev. 440, 14 Pac. 298, 3 Am. St. Rep. 901.)

It is true, as contended, that if the justice court had not

Opinion of the Court-Norcross, J.

jurisdiction to try the case, because of the unconstitutionality of the act, the district court, also, would not. The district court, however, would have power to determine the jurisdictional question by passing upon the constitutionality of the law, and if it erred in its decision, the same could be reviewed upon certiorari by this court.

The Supreme Court of California, upon a statute practically identical with that of this state, has taken a contrary view as to whether certiorari will lie to review a judgment of the superior court rendered on an appeal from an inferior court, where it is claimed that the superior court, as well as the inferior court, is without jurisdiction. (Valentine v. Police Court, 141 Cal. 615, 75 Pac. 336.) This view, we think, is placing relief by certiorari within too narrow limits and is not so required by the language of the statute. This court, in practice, has recognized the propriety of issuing the writ to review proceedings in the district court in excess of jurisdiction, had upon appeal from, a justice court. (Peacock v. Leonard, 8 Nev. 84; Martin v. District Court, 13 Nev. 85.)

The contention of counsel that, the court having issued the writ, it is too late to question the jurisdiction of the court to proceed under it, is without merit. The motion to quash and dismiss the writ was made upon the first opportunity upon the hearing and was argued before the argument upon the merits, besides, it was the desire of respondents' counsel to have this question determined before a hearing upon the merits. Furthermore, the writ was issued without a hearing, with the understanding that opposing counsel reserve the right to question the appropriateness of the remedy upon the hearing upon the return of the writ.

It is earnestly contended by counsel for petitioner that the decisions of this court are not in harmony upon the question as to whether certiorari will lie where there is the right of appeal and that the true rule is stated in the case of Paul v. Armstrong, 1 Nev. 82, which rule, it is claimed, "was recognized by implication at least," in the case of State v. Mack, 23 Nev. 359, 47 Pac. 763, 62 Am. St. Rep. 811. In effect, the opinion of Brosnan, J., in the case of Paul v. Armstrong, supra, held, "A writ of certiorari is not inhibited to a party

Opinion of the Court-Norcross, J.

aggrieved in all proceedings or actions wherein a right of appeal is given." In considering the case of Paul v. Armstrong it should be noted that Beatty, J., did not participate in the hearing, and that Lewis, C. J., concurred "in the affirmance of the judgment below, but for reasons different from those given by Justice Brosnan." It will be seen, therefore, that the opinion of Brosnan, J., does not have the force of an opinion of this court. Besides, Justice Brosnan, in his opinion, held that the case was one in which an appeal would not lie, and in two subsequent cases this court has held to the same effect. (Wiggins v. Henderson, 22 Nev. 108, 36 Pac. 459; Martin v. District Court, 13 Nev. 90.) The case was, therefore, one in which it was entirely proper to proceed in certiorari under the rule that the remedy is not appropriate where the right of appeal exists. It is interesting here to note that in the case of Golding v. Jennings, 1 Utah, 135, cited by counsel for petitioner, that court adopted the portion of the opinion of Brosnan, J., in the Paul v. Armstrong case, relative to the writ of certiorari, as a correct statement of the rule governing the function of the writ. Subsequently, in the case of Saunders v. Nursery, 6 Utah, 438, 24 Pac. 532, the case of Golding v. Jennings was overruled; the court in its opinion saying: "Upon further consideration of the question, the court is of the opinion that a writ of certiorari or review will not lie where the right of appeal exists."

We cannot agree with counsel for petitioner that the rule as declared by Brosnan, J., in the case of Paul v. Armstrong "was recognized, by implication at least," in the case of State v. Mack, supra. The following sentence from the opinion in the latter case, we think, sufficiently answers counsel: "Counsel for respondent concede that the special plea to the jurisdiction of the district court, and the proceedings thereon, are regular and proper, and that the proceedings in this court upon certiorari are proper and regular, therefore no opinion is given upon these questions." In every case where this court has passed directly upon the question it has held that the remedy by certiorari cannot be resorted to where the right of appeal is afforded. (Leonard v. Peacock, 8 Nev. 162; Nevada Central R. R. Co. v. District Court of Lander County,

Opinion of the Court-Norcross, J.

21 Nev. 411, 32 Pac. 673; Phillips v. Welch, 11 Nev. 193; Wiggins v. Henderson, 22 Nev. 107, 36 Pac. 459.)

The Supreme Court of California has uniformly held that proceedings in certiorari will not lie where an appeal could have been resorted to. (Gray v. Schupp, 4 Cal. 185; Clarey v. Hoagland, 13 Cal. 173; People v. Shepard, 28 Cal. 115; Bennett v. Wallace, 43 Cal. 25; C. P. R. R. Co. v. Placer Co., Id. 365; Stuttmeister v. Superior Court, 71 Cal. 322, 12 Pac. 270; McCue v. Superior Caurt, 71 Cal. 545, 12 Pac. 615; Stoddard v. Superior Court, 108 Cal. 303, 41 Pac. 278; Valentine v. Superior Court, 141 Cal. 615, 75 Pac. 323; Wittman v. Police Court, 145 Cal. 474, 78 Pac. 1052.) This rule is in accordance with the great weight of authority, especially in states having statutes similar to ours. (People v. Lindsey, 1 Idaho, 394; Ramsey v. Pettengill, 14 Or. 207, 12 Pac. 439; Saunders v. Nursery, 6 Utah, 348, 24 Pac. 532; State v. District Court, 24 Mont. 499, 62 Pac. 820; 4 Enc. Pl. & Prac. 51; 6 Cyc. 742, and authorities cited.) The fact that petitioner has neglected to take advantage of his right of appeal and has suffered the time to lapse within which an appeal could have been taken does not warrant the issuance of the

(Faust v. Mason, 47 Cal. 7; McCue v. Superior Court, supra; Stuttmeister v. Superior Court, supra; Ramsey v. Pettengill, supra; Roy v. Whitford, 9 Nev. 370; 6 Cyc. 742.)

The additional reasons urged by counsel in support of their contention that certiorari is an appropriate remedy in this case, we think, are fully answered by the rule and authorities heretofore cited. Counsel for petitioner have presented a very elaborate argument and brief in support of their contention that the act for the violation of which petitioner was convicted is unconstitutional; but, under the view which we have taken of this case, the interesting and important questions so ably presented cannot be determined in this proceeding. For the reasons given, it is ordered that the writ be dismissed.

TALBOT, J.: I concur.

FITZGERALD, C. J.: I dissent.

VOL. XXIX-11

Opinion of the Court-Norcross, J.

ON PETITION FOR REHEARING.

By the Court, NORCROSS, J.:

There are no points set up in the petition not presented in the briefs heretofore filed in this cause and covered by the decision rendered. A further examination of the questions involved has not occasioned any doubt as to the correctness of the conclusion heretofore reached.

The petition is denied.

TALBOT, J.: I concur.

FITZGERALD, C. J.: I dissent.

[No. 1693.]

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

ORIGINAL PROCEEDING. Certiorari by B. Gerber to review his conviction of a misdemeanor before the Justice Court of Tonopah Township, Nye County, State of Nevada. Writ dismissed.

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

James G. Sweeney, Attorney-General, and W. B. Pittman, District Attorney of Nye County, Nevada, for Respondents. By the Court, NORCROSS, J.:

This is an original proceeding in certiorari. The questions involved in this case are identical with the case of Abraham Chapman v. Above-Named Respondents (No. 1692), 29 Nev. 154, ante.

For the reasons stated in the last-mentioned case, it is ordered that the writ be dismissed.

TALBOT, J.: I concur.

FITZGERALD, C. J.: I dissent.