Opinion of the Court-Ducker, J.

Petitioner seeks to have this court control the action of the commission in a matter where it had to exercise its judgment and discretion, and determine questions of fact. The commission heard and weighed evidence and arrived at a conclusion; there was no mere ministerial duty. "A subordinate body can be directed to act, but not how to act, in a matter as to which it has the right to exercise its judgment; and, where it is vested with power to determine a question of fact, the duty is judicial; and, however erroneous its decision may be, it cannot be compelled by mandamus to alter its determination." Hoole v. Kinkead, 16 Nev. 217; State ex rel. Holley v. Boerlin, 30 Nev. 473.

By the Court, DUCKER, J.:

This is an original proceeding in mandamus.

The petition of W. J. P. Lawton shows, among other matters, that on August 24, 1904, the city council of the city of Reno, a municipal corporation, approved an ordinance granting to certain persons, their successors in interest or assigns, the right to construct, maintain, and operate a street-car line over, across, and upon certain streets, alleyways, and avenues of said city. The franchise privileges granted thereby were duly accepted by them, and thereafter assigned to the defendant, Reno Traction Company, a corporation organized and existing under and by virtue of the laws of California, which now owns and holds said franchise, and by virtue thereof has constructed, maintains, and operates street-car lines over and across and upon certain streets of the city of Reno. On the 4th day of September, 1919, the said Reno Traction Company made an application to the Public Service Commission of Nevada for an order permitting it to permanently discontinue all service upon and over certain branches of its street-car lines in said city. In pursuance of said application and after notice duly given, the public service commission held a public hearing, and on the 22d day of December, 1919, made and

Opinion of the Court-Ducker, J.

filed an order authorizing the Reno Traction Company to permanently discontinue service over the streetrailway lines designated in the application. The order was made effective January 15, 1920. The commission afterwards amended this order making it effective on January 20, 1920.

The petition sets forth further, that by reason of said franchise, its terms and conditions, and the acceptance thereof by the Reno Traction Company and its predecessors, the construction, maintenance, and operation of the street-car lines and street-car service on the streets of the city of Reno, and especially by reason of those designated in the order of discontinuance by the commission, property rights have been acquired by many of the citizens of the city of Reno, homes have been constructed, money been expended by such citizens and taxpayers, as well as by the municipal corporation itself, in the paving and improving of the streets, establishment, and maintenance of sewerage systems and other essential municipal improvements; that the public service commission, unless otherwise directed by the mandate of this court, will cause its order of permanent discontinuance of street-car service to become effective January 20, 1920, and that the company will discontinue such service to the irreparable injury of the petitioner and other citizens and taxpayers of the city of Reno in their property and property rights, acquired and depending on such service. This service, it is alleged, is a business of public nature, and has become and now is a public necessity, and one upon which petitioner, as a householder in the proximity of one of said street-car lines, as well as a great number of citizens of said city, have become wholly dependent for transportation to and from their respective homes and places of business, and that the public welfare of these citizens whose homes and properties lie adjacent to, or in the proximity of, the streets and avenues named in the order is for the same reason dependent upon and involved in such service.

Opinion of the Court-Ducker, J.

It is also alleged that the public service commission in making and entering the order exceeded its jurisdiction, in that by the order it attempts to nullify the terms, conditions, and obligations of a written contract mutually entered into between the municipality of the city of Reno, a corporate body, and the Reno Traction Company, a public service corporation, and that the order is therefore null and void; the petitioner, as well as a great number of citizens, taxpayers, and householders of the city of Reno, has no plain, speedy, and adequate remedy in the ordinary course of law.

Petitioner prays that an alternative writ of mandamus issue out of this court, commanding the public service commission to refrain and desist from in any wise enforcing or making effective said order, and commanding and directing the commission to nullify and set the order aside, and commanding the Reno Traction Company to continue service.

Upon this petition the alternative writ was issued by this court, commanding the commission to set the order aside and the company to continue the service, or appear and show cause why the mandate and order should not be made peremptory and effective.

The public service commission and the Reno Traction Company demurred to the petition, the former upon the ground that the petition does not state facts sufficient to constitute a petition for a writ of mandamus or to warrant its issuance, and the latter upon the same grounds, and, in addition thereto, that there is a misjoinder of parties defendant, and that this court has no jurisdiction of the subject matter of the proceedings. The commission and the company also filed their respective answers to the petition.

In this proceeding the jurisdiction of the public service commission to make the order authorizing the Reno Traction Company to discontinue street-car service over the streets designated in the order is challenged upon the ground that the ordinance of the city of Reno and the acceptance of the franchise privileges thereby

Opinion of the Court-Ducker, J.

accorded by the company and its predecessors constitute a legal contract which the commission cannot abrogate without the consent of the parties. The demurrers present the question as to whether mandamus is a proper remedy to inquire into the jurisdiction of the commission to make the order of discontinuance complained of by petitioner. We are of the opinion that mandamus will not lie against either of the defendants.

1. There has been no refusal on the part of the commission to perform any duty enjoined upon it. The writ is not sought to stimulate the commission to action pursuant to some legal duty, but rather to cause it to undo the result of action taken in a matter in which its jurisdiction has been invoked in conformity with the statute defining its powers over public utilities in this state. Mandamus is ordinarily a remedy for official inaction, and will not lie to undo what has been done. 26 Cyc. 158.

As set out in the foregoing statement of facts, the prayer of the petition is that an alternative writ of mandamus issue out of this court, commanding the public service commission to refrain and desist from in any wise enforcing or making effective its order, commanding and directing said Public Service Commission of Nevada to nullify and set aside said order.

The function and scope of the extraordinary writ of mandamus have been clearly and definitely defined by the statutes of this state and by the decisions of this court, as pointed out and discussed by counsel for the commission and the company in oral argument, and in their briefs. That part of section 5695 of the Revised Laws of Nevada applicable in this proceeding reads:

"It [the writ of mandamus] may be issued by the supreme court, a district court, or a judge of the district court, to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust, or station.

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Discussing the office and scope of the writ under this statute, this court, in State v. Gracey, 11 Nev. 223, said:

Opinion of the Court-Ducker, J.

"To justify the issuance of the writ to enforce the performance of an act by a public officer, two things. must concur: The act must be one the performance of 'which the law especially enjoins as a duty resulting from an office,' and the actual omission on the part of the respondent to perform it. It is incumbent on the relator to show, not only that the respondent has failed to perform the required duty, but that the performance thereof is actually due from him at the time of the application."

Again, in State of Nevada ex rel. Freyesleben v. Ninth Judicial District Court, 40 Nev. 168, 161 Pac. 510, this court, referring to the function of the writ of mandamus, declared that:

"It needs no citation of authority to support the well-established rule that the writ of mandamus will not assume the functions of a writ of error, nor will it serve to require the inferior tribunal to act in a particular manner or to enter any particular judgment or order. On the contrary, it serves only to compel the doing of some act which it is the clear legal duty of the lower court in some way to do."

Other decisions of this court, which need not be alluded to specially, express the same view that mandamus is in no wise a preventive remedy, into which it is sought to be converted in this case.

"Its purpose and object is to command performance, not desistance, and is a compulsory as distinguished from a revisory writ; it lies to compel, not to revise or correct, action, however erroneous it may have been, and is not, like a writ of error or appeal, a remedy for erroneous decisions." 18 R. C. L. 114.

This limitation is maintained by the general current of authority; and this court, in restricting the issuance of the writ under the section of the statute cited to cases where it went "to compel the performance of an act especially enjoined by law," has disposed of the contention made here that it will lie to reverse the order of the commission for want of jurisdiction.