#### STATE v. RUFUS WHITAKER et al.

Writ of Prohibition, nature and purposes of — Violation of Town Ordinance — Th'ictl by Jury — Appeal—Practice.

1. The writ of prohibition which existed at common law and is authorized by Art. IV, sec. 8 of the Constitution, can only be issued from the Supreme Court.

2. The writ of prohibition does not lie for grievances which may be redressed in the ordinary course of judicial proceedings by appeal, recordari or certiorari, and hence will not issue to prevent a Mayor’s Court from proceeding to try a warrant for an alleged violation of *819a city ordinance, where such-Court hasr jurisdiction of the persons and subject-matter and the alleged invalidity of the ordinance can be determined on appeal.

3. The guaranty of a trial by jury in the sixth and seventh amendments to the Constitution of the United States applies only to the Federal Courts, and is not a restriction on the States, which may provide for the trial of criminal and civil cases in their own Courts, with or without jury, as authorized by the State Constitution.

4. Under Art. I, sec. 13 of the Constitution of North Carolina, the Legislature may provide for the trial of petty misdemeanors in inferior Courts without a jury, provided the right of appeal is preserved.

5. Where a petition for a writ of prohibition is entertained the usual practice, unless prior notice of the petition has been given, is to issue a notice to the lower Court to shew cause wdiy the w;rit should not issue and to stay proceedings in the meantime.

(Discussion by Associate Justice Clark of the nature, purposes and effect of the writ of prohibition and the practice in relation thereto).

The defendants applied for a writ of prohibition to issue to Thomas Badger, Mayor of the city of Raleigh, upon the ground that the city ordinance for the violation of which they were being tried was invalid and because a trial by jury had been refused them.

Messrs. T. M. Argo and J. O. L. Harris, for petitioners.

Clark, J.:

The writ of prohibition existed at common law and is also authorized by the constitutional provision (Art. IV, sec. 8) which gives the Supreme Court “power to issue any remedial writs necessary to give it a general supervision and control over the proceedings of the inferior Courts.” In this State this writ can issue only from the Supreme Court. Perry v. Shepherd, 78 N. C., 83.

The writ of prohibition is the converse of mandamus. It prohibits action, while mandamus compels action. It differs from an injunction, which enjoins a party to the *820action from doing the forbidden act, while prohibition is an extraordinary judicial writ issuing to a Court from another Court having sujiervision and control of its proceedings, to prevent it from proceeding further in a matter pending before such lower Court. It is an original remedial writ and is the remedy afforded by the common law against the encroachment of jurisdiction by inferior Courts and to keep them within the limits prescribed by law. 19 Am. and' Eng. Enc., 263, 264; High Extraordinary Rem., sec. 762.

It is settled that this writ does not lie for grievances which may be redressed in the ordinary course of judicial proceedings by appeal or by reeordari or certiorari in lieu of an appeal. Nor is it a writ of right, granted ex debito jus-titix, like habeas corpus, but it is to be granted or withheld according to the circumstances of each particular case. Being a prerogative writ, it is to be used like all such, with gi’eat caution and forbearance to prevent usurpation, and secure regularity, in judicial proceedings where none of the ordinary remedies provided by law will give the desired relief, and damage and wrong will ensue pending their application. High on Extraordinary Remedies, secs. 765, 770.

In the present case the Mayor’s Court has jurisdiction of the persons of the defendants and of the subject-matter, which is the alleged violation of a town ordinance. If the ordinance in question is invalid that matter can be determined on appeal to the Superior Court, and b}7 a further appeal (if desired) thence to this Court. This has been often done. There is no palpable usurpation of jurisdiction or abuse of its authority, nor likelihood of injury to defendants, which calls for the extraordinary process of this Court by prohibition to stop the action of the lower Court. It is more orderly to proceed in the regular way to have an alleged error of this kind corrected on appeal. The writ might properly issue where the Court below has no *821jurisdiction of the subject-matter, as, for instance, if a Justice of the Peace should attempt to try a defendant for larceny, or decree foreclosure of a mortgage; but even in that case it would rest in the discretion of the Supreme Court whether the matter should be left to correction by appeal or by treating such judgment as a nullity. As to the denial of a jury trial by the Mayor, it is pointed out by Sixith, G. J., in State v. Powell, 97 N. C., 417, that under the present Constitution (Art. I, section 13) the Legislature is authorized to vest the trial of petty misdemeanors in inferior Courts without a juiy if the right of appeal is preserved. It was otherwise under the former Constitution, under which State v. Moss, 47 N. C., 66, was decided. The guaranty of a trial by jury in the sixth and seventh amendments to the Constitution of the United States applies only to the Federal Courts, and is not a restriction on the States, which may provide for the trial of criminal and civil cases in their own Courts, with or without jury, as authorized by the State Constitution. Cooley Cons. Lim. (6th ed.), 30; Walker v. Sauvinet, 92 U. S., 90; Munn v. Illinois, 94 U. S., 113.

There are instances, though infrequent, when this writ has been invoked. It has been granted where, after a conviction for felony, the Court has at a subsequent term granted a new trial upon the merits, without any legal authority for so doing, Quimbo Appo v. The People, 20 N. Y., 531. It is also the appropriate remedy pending an appeal from an inferior to a Superior Court, to prevent the former from exceeding its jurisdiction by attempting to execute the judgment appealed from; or to prevent a Circuit Court exceeding its powers by issuing an unauthorized writ of error and supersedeas to a County Court and interfering improperly with the jurisdiction of the latter. Supervisors v. Gorrell, 20 Grat., 484. Also, to prevent an infe*822rior Court’s interfering with or attempting to control the records and seal of the Superior Court by injunction. Thomas v. Meade, 36 Mo., 232. It lies to prevent a Probate Court exercising jurisdiction over the estate of a deceased person when it cannot lawfully do so. United States v. Shanks, 15 Minn., 369. Or, where Justices of the Peace are'pi'oceeding without authority of law to abate a supposed nuisance, prohibition lies to stay their action. Zylstra v. Charleston, 1 Bay, 382. These are cited as illustrations, but in each case it is in the discretion of the Supremo Court whether the writ shall be granted.

Prohibition does not issue to restrain ministerial acts, but only to restrain judicial action where the latter would be a usurpation and cannot be adequately remedied by an appeal. 19 Am. and Eng. Enc., 268, 269. It issues to and acts upon Courts as an injunction acts upon parties, and like an injunction it does not lie where adequate remedy can be had by the ordinary process of the Courts. When entertained the usual course* unless prior notice of the petition has been given, is to issue a notice to the lower Court to show cause why the writ should not issue and to order a stay of proceedings in the meantime. 19 Am. and Eng. Enc., 280, 281.

In the present case if the defendants are convicted upon an invalid ordinance there is ample remedy by appeal. The Constitution does not guarantee a jury trial in such case, since the defendants have the right of appeal. If there is aught in the charter of the city which grants the defendants a trial by jury, if demanded, the error in the refusal could be corrected bj? a jury trial in the Superior Court. There is no emergency which requires the Court to issue the writ prayed for. Petition Denied.