In re Cecchettini for a Writ of Prohibition

By the Court, Coleman, C. J.: This is an application for a writ of prohibition to restrain the justice of the peace of New River township, Churchill County, Nevada, from proceeding to try the petitioner upon a misdemeanor charge for violating the prohibition statute. As we interpret the brief filed in behalf of petitioner, it is conceded that a justice of the peace has jurisdiction to hold a preliminary hearing where one is accused of violating the prohibition law, but that he has no jurisdiction to try and determine such a charge. Section 28 of the prohibition statute (Stats. 1919, p. 1) provides that justices of the peace shall have concurrent jurisdiction with the district court for the trial of first offenses arising under the act. From a reading of the complaint filed against petitioner, it appears that this is a first offense. The same contention is made in this proceeding as was urged upon us in Ex Parte Arascada, 44 Nev. 30, this day decided, as to the constitutionality of the portion of section 28 which undertakes to confer concurrent jurisdiction upon the justice and district courts, and the ruling in that matter is controlling in this. In that matter we hold the portion of the section mentioned, and all portions of the statute dependent thereupon, to be repugnant to section 8 of article 6 of the constitution, and void. It follows that the j ustice courts are without jurisdiction to try persons charged with violating the prohibition statute. Nothing was said in Ex Parte Zwissig, 42 Nev. 360, 178 Pac. 20, contrary to the views expressed herein. In that matter the question here presented was not suggested, the petitioner assuming that the justice court had jurisdiction, if the points presented were not well taken. While it follows that the writ sought must issue, it [44] does not follow that the justice of the peace has no jurisdiction to hold a preliminary hearing, as was shown in Ex Parte Arascada, supra. It is ordered that a peremptory writ of prohibition issue, restraining the respondent from further proceeding to try the petitioner upon the charge mentioned, and from rendering a judgment therein, but not restraining said respondent from holding a preliminary hearing.