The case of the Norfolk & Western Railway Company against the Pinnacle Coal Company and others presents but a single important question, and this is:' When the *576legislature enacts a statute fixing a maximum rate of freight charges for railroad companies, and afterwards repeals such enactment, has a justice of the peace the jurisdiction, under the pretense of deciding whether such enactment has been repealed, to take cognizance of causes of action arising thereunder, hold such law still in force, and render judgment against alleged offending railroad companies for overcharge of freight? Our statute greatly simplifies the" common-law remedy of prohibition. It is as follows (section 1, chapter 110, Code): “The writ of prohibition shall lie as a matter of right in all cases of usurpation and abuse of power when the inferior court has not jurisdiction of the subject matter in controversy, or having such jurisdiction, exceeds its legitimate powers. ” Two important changes are made in the common law: (1) The writ is no longer a matter of sound discretion but a matter of right; (2) it lies in all proper cases, whether there is other remedy or not. Prior to this enactment, which bears date in 1882, it was recognized as a concurrent remedy with appeal, writ of error, etc., only to be resorted to, however, when such other writs were inadequate. Swinburn v. Smith, 15 W. Va. 501; High. Extr. Rem. §§ 770, 771; People v. House, 4 Utah, 369, (10 Pac. 838); People v. Spiers, 4 Utah, 585, (10 Pac. 609, and 11 Pac. 509). These two Utah cases hold that when a j ustice is proceeding- to try a case of which he has no jurisdiction, prohibition is the proper remedy, although an appeal would lie, as the latter is neither a speedy nor adequate remedy. The reason why it is given as a concurrent remedy at common law is found in Hig-h. Extr. Rem. § 765: “Nor is it a writ of right granted ex debitor justtice, but rather one of sound judicial discretion, to be granted or withheld according to the circumstances of each particular case.” The statutes of some other states, notably California, preserve the common-law doctrine intact by the addition of the words where there “is not a plain, speedy, and adequate remedy in the ordinary course of law.” Code Civ. Proc. Cal. §§ 1102, 1103. Our statute contains no such words of limitation, for the better reason that the legislature recognized the fact that in cases of usurpation of denied or abuse of conceded power on the *577part of an inferior tribunal prohibition alone would furnish a plain, speedy, and adequate remedy, as it acts directly on the tribunal as well as the litigant. Appeals, writs of error, and certiorari, do not directly reach and cure the evil, for the reason that it may become chronic, epidemic, and highly damaging before these ordinary writs may be made effective. In cases of mere error, irregularity, or mistake, however gross, prohibition does not lie; not because, as is oftentimes erroneously stated, there exist other adequate remedies, or such remedies are inhibited, but for the reason that there has been no usurpation or abuse of power. In all cases within the purview of the statute, prohibition lies as a matter of right without regard to other remedies. In applications for prohibition under the statute, the only important question for inquiry is as to whether the inferior tribunal is guilty of “usurpation and abuse of power” beyond its jurisdiction, or, having jurisdiction of the subject-matter, has it exceeded its “legitimate powers ?” An affirmative answer grants the writ as a matter of right, while a negative answer refuses it, though the applicant be bereft thereby of all remedy. In the present case, if the justice had jurisdiction of-the matter in controversy, and did not exceed his legitimate powers, the writ must be denied; otherwise it issues as a matter of right, without regard to other remedies.
According to law, constitutional and statutory, a justice of the peace is given jurisdiction of all civil actions except where the amount claimed, exclusive of interest and costs, exceeds three hundred dollars, or the title to real estate is involved, or the action is for false imprisonment, malicious prosecution, slander, verbal or written, breach of marriage contract, or seduction. This includes all actions for the recovery of money when such recovery is authorized by common law or statutory enactment. And it impliedly follows that he has no jurisdiction of any cause of action unknown at common law, and not authorized by. statute. The legislature has the right to create new causes of action for the recovery of money, but a justice of the peace has not, and when he attempts to create anew cause of'action he usurps legislative functions, and, if he illegally extends a certain class of actions within his ju*578risdiction to include a new cause of action of his own creation, he is guilty of exceeding his legitimate powers. Nor can he excuse himself by claiming that he acted in good faith in accordance with the law, as he understood it, and had the right to decide it; for it is not a question of good faith or honest purpose, but of excess of legitimate powers, and usurpation of jurisdiction over a subject-matter of which the law gives him no control, and ignorance of law is no justification-therefor. In every case of usurpation or abuse of power the inferior tribunal always determines jurisdiction in its own favor, and so with excess of legitimate power, and, if its holding affords the criterion to go by, there could never be any justification for the writ of prohibition; but it is because such court erroneously determinesits own jurisdiction that the writ issues. High, -Extr. Rem. § 780. It always goes against a judicial tribunal and judicial action, and not that which is merely ministerial. A court that usurps jurisdiction only errs, but its error is of such a grievous nature as to call for prompt redress from a supervising tribunal. The statute uses the language “subject-matter in controversy.’’ What is the subject-matter in controversy but the cause of action in this case, — “over-charges of freight”? The mere money demand is neither the cause of action nor the subject-matter of controversy. It is simply the measure of damages. While the controverted fact is the right of the railroad company to fix its freight charges. This is a right that can only be taken away from it by reasonable legislative enactment. And if the maximum fixed by the legislature is unreasonably low, the enactment has been lately held, in a case not yet reported, by the Supreme Court of the United States, to be void, as depriving the company of its property without due process of law. Smyth v. Ames, 18 Sup Ct. 418. - The question of the constitutionality of the act under consideration could not now be raised, since it has been repealed. And yet a right which is denied to a state legislature is claimed to be within the jurisdiction of a justice of the peace. In short, that he is clothed with the power to say when the charges of a railroad company are reasonable, simply because he has jurisdiction of money demands, and, if the amount for *579which he gives judgment is less than that for which an appeal lies, the company is without remedy. This would be nothing less than legal robbery. The action of the justice is justified under the color of law. A repealed statute is as though it never existed, and does not fnrnish color of law any more than if it had never been enacted. The only color of law the justice has is his own opinion. Nor does prohibition lie until this opinion takes the form of a judgment. It is said said in High, Extr. Rem. § 780: “When it does not appear that the tribunal against which the writ is sought has entei'tained jurisdiction of the matter in controversy, or that it has done any act showing an intention so to do, the relief will be denied, since it is not to be presumed that such tribunal will act in a matter over which it has no jurisdiction.” The justice must first err in his decision before he can be prohibited. Errors in excess of legitimate powers or abuse of jurisdiction are subject to prohibition, but errors of judgment in the proper trial of a matter within jurisdiction are not, such as insufficiency of process or service, or statement of cause of action, weight of evidence, or regularity or form of judgment, or necessary rulings during- the process of the trial, —non-jurisdictional. It is said in High, Extr. Rem. §767: “In the exercise of the jurisdiction by prohibition, it is important to distinguish between the nature of the action which it is sought to prohibit, and the sufficiency of the cause of action, as stated in the proceedings in the pending litigation. The nature of the action itself determines the jurisdiction of the court over the subject-matter, regardless of the sufficiency of its presentation or statement. If, therefore, the action is of such a nature as to fall within thejurisdiction of an inferior court, prohibition will not lie merely because of insufficiency in the statement of the cause of action in the pleadings, or because of insufficient proof to sustain the cause of action as stated.” There is a vast difference between stating a good cause of action imperfectly and stating an illegal cause or ground of action. In the former case the justice would have jurisdiction, and in the latter case he would not have, except to deny the want thereof; and the claim that he assumed j urisdiction in good faith in ignorance of law would not *580excuse him. A justice of the peace manufactures jurisdiction for himself just as much where he creates new causes of action unknown to the common law, and unauthorized by statute, as where he separates a claim beyond his jurisdiction into several causes of action within his jurisdiction. Bodley v. Archibald, 33 W. Va. 229, (10 S. E. 392). In the latter case strict justice may be done, though the justice act erroneously in assuming cognizance of such actions, but in the former he cannot do justice otherwise than by denying jurisdiction. That subsections 7, 8, s. 82c, c. 54, Code 1891, as to classification of freight and rates of charge, are repealed by chapter 17, Acts 1895, is too plain for argument, for they are inconsistent therewith, and expressly repealed by section 5 of said last-named act. As to this, see Judge Brannon’s dissenting opinion. For these reasons the judgment of the circuit court is reversed, and the writ of prohibition as prayed for is awarded.