¶1To a petition for a rehearing—
¶2delivered the following response:
¶3The Code of Practice, section 479, says: “The writ of prohibition is an order of the circuit court to an inferior court of limited jurisdiction, prohibiting it from proceeding in a matter out of its jurisdiction.”
¶4Before the passage of the act of February 23, 1874, which is unconstitutional and void, the county court had no jurisdiction over the subject of that act; and the void act could not create any jurisdiction for the county court.
¶5Therefore, as the county court was proceeding in a matter out of its jurisdiction, the proper remedy was by writ of prohibition.
¶6The case of Arnold v. Shields, 5 Dana, sustains this view.
¶7It is true that it is said in that case:
¶8“If the statute be unconstitutional, that fact does not ■show that the magistrate had no jurisdiction over the suit, bub would prove only that his judgment was erroneous;” but this was said in explication of the other important point *22in that case, to-rvit: That the magistrate had jurisdiction to-decide whether the demands were legal or void, even if the act of 1836 were unconstitutional, or had never been enacted.
¶9Hence, it is clear that the magistrate’s jurisdiction did not depend upon the act of 1836; and his judgment as to-its constitutionality being simply erroneous, was subject to-revision by appeal only.
¶10But the court also said:
¶11“If the act of 1836 be unconstitutional, and therefore-void; and if, also, the magistrate would not, independently of that statute, have had jurisdiction to decide on a demand for fifty dollars claimed as a penalty due from the defendants to the plaintiff in the warrant, there coidd be no doubt that he wozdd have had no jurisdiction, because Ids only authozity wozdd have been a void statute, which could cozifer no power.”
¶12The facts of this case, and want of jurisdiction of the county court, without -the aid of the void act of February 23, 1874, bring it within the reasoning of. this quotation.
¶13Petition overruled.