ON REHEARING.
Hire, C. J.Counsel for the petitioners have presented to the court in their briefs for rehearing a wealth of learning and the result of indefatigable research.
The importance of the issues and the zeal and earnestness of counsel require of the court a consideration anew of the questions involved.
It is insisted that the decision overrules prior rulings of the court. A careful re-examination of the cases satisfies the court that no prior decision is overruled; certainly, none wittingly. Russell v. Jacoway, 33 Ark. 191, is not overruled. The opinion pointed out that in that case there was a relaxation of the rule of Ex parte Williams, 4 Ark. 537. As this case does not fall within the relaxation of Russell v. Jacoway, the jurisdictional question not even going before the judge at chambers, it would be travel-ling beyond this record either to approve or overrule Russell v. Jacoway. Palmer v. McChesney, 26 Ark. 452, was referred to as deciding that an appeal would not lie from the action of a judge at chambers granting or refusing mandamus, because the question ruled upon must be first presented to the court and a judgment there entered upon it. The value of that case was merely to show that in mandamus proceedings, as well as in prohibition, the question presented to the appellate court must first be acted upon in the inferior court. Ex parte Williams, supra, has been followed by Ex parte Blackburn, 5 Ark. 21; Ex parte McMeechen, 12 Ark. 70; Ex parte City of Little Rock, 26 Ark. 52, and State v. Williams, 48 Ark. 227. The rule is thus stated in the latter case: “Prohibition is an extraordinary remedy, and the writ will not be granted unless the defendant has objected to the jurisdiction of the inferior court, and his objection has been overruled.”
In the case at bar there is a mandamus suit regularly pending in the Howard Circuit Court; in that suit the circuit judge has issued a restraining order, and no objection has been interposed to the jurisdiction of the inferior court, and there has not been any ruling on any jurisdictional question by the court. The court must therefore deny this writ on this ground, or overrule these many and well-considered cases, and it declines to do the latter.
In the opinion heretofore rendered there was deduced from this rule the further proposition that the writ of prohibition would not lie to a judge or chancellor at chambers, holding that he was not such an officer that he was within the exception to the rule, which did not apply to municipal bodies, quasi-judicial officers, etc. This deduction was not necessary to the decision of this point; and on reflection the court has decided to modify the opinion so as to leave unconcluded the-question whether the writ in any proper proceeding therefor may be directed to the action of a judge or chancellor which is not 'and will not become involved in any proceeding before the court.
The court has carefully considered the other propositions decided and the briefs of counsel concerning them, and concludes that neither modification nor change should be made therein. Objection is taken to deciding more questions than one decisive of the case, and it is claimed that all others are obiter dicta and not binding as precedents. On the hearing, it was urged that it would be to the public welfare of the county if all the questions involved were decided, so that this litigation, so deeply affecting the county, would be the earlier ended. It seemed to the court that its duty required it to pass upon every question which the record fairly presented, and it took up the questions severally and disposed of each of them, the result being a denial of the writ, for the reasons stated.
The motion for rehearing is overruled, and the judgment, which has been vacated pending this motion, re-entered.
McCurroch, J., dissenting.