345 A.2d 912

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, LOCAL NO. 572 v. CITY OF DOVER

No. 7302Supreme Court of New Hampshire Strafford
Decided September 19, 1975

1. City’s petition asking the supreme court to stay the order of the superior court reinstating the discharged employees pending a hearing on the merits of their petition for an injunction is in effect a petition for a writ of prohibition seeking to stay the action of an inferior court.

2. The supreme court exercises its authority to issue a writ of prohibition with caution and forbearance and only when the necessity to act is clear.

3. Since the superior court order complained of merely preserved the status quo pending an expeditious hearing on the merits, the city’s petition was denied.

Fisher, Parsons, Moran Temple (Mr. Robert H. Temple orally) for the plaintiff.

Douglas C. Gray, city solicitor, by brief and orally, for the defendant.

MEMORANDUM OPINION

On August 22, 1975, twenty union and five nonunion employees refused to punch in their time cards and commence work following a labor dispute. The Dover city manager discharged these employees on the grounds that they violated an existing labor agreement and participated in an illegal strike.

The plaintiffs petitioned the superior court and asked that pending a hearing on the merits the city be temporarily enjoined from hiring replacement employees and for a temporary order reinstating the discharged employees. The Trial Court (Mullavey, J.), after hearing, ordered the discharged employees to be reinstated pending a hearing on the merits of the petition. The parties are before this court as a result of a petition by the city asking this court to stay

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the order of the superior court pending a hearing on the merits of plaintiffs’ petition.

In effect, the city is asking for a writ of prohibition. See State ex rel. Regan v. Superior Court, 102 N.H. 224, 153 A.2d 403 (1959); State v. Superior Court, 106 N.H. 228, 208 A.2d 832 (1965). The city seeks to restrain and stay action of an inferior court. The petition is within the jurisdiction of this court (RSA 490:4 (Supp. 1973)) but our authority is exercised with caution and forbearance and only when the necessity to act is clear. The order complained of merely preserves the status quo pending a hearing on the merits which shall be held expeditiously. Hillsborough v. Superior Court, 109 N.H. 333, 334, 251 A.2d 325, 326 (1969); Manchester Educ. Ass’n v. Superior Court, 109 N.H. 513, 514, 257 A.2d 23, 24 (1969).

Petition denied.