of the law, and if a writ of mandamus was the proper remedy for such relief, the writ might have been issued in the exercise of the proper jurisdiction of the court, inasmuch as the cause is one arising exclusively "under the postal laws." Upon repeated examination of the decisions of the Supreme Court, however, I cannot find myself authorized to treat this question as an open one. In most of the cases in which the question has arisen, the Circuit Court had undoubted original jurisdiction of the subject-matter of the proceedings, under some one or other of the express provisions of the statutes, quite as clear as is its authority to determine "all causes arising under the postal laws." Nevertheless, the right to pursue the remedy by means of an original writ of mandamus has been uniformly denied. McIntire v. Wood, 7 Cranch, 504, 3 L. Ed. 420; McClung v. Silliman, 6 Wheat. 598, 5 L. Ed. 340; Bath Co. v. Amy, 13 Wall. 244, 20 L. Ed. 539; Graham v. Norton, 15 Wall. 427, 21 L. Ed. 177; County of Greene v. Daniel, 102 U. S. 187, 26 L. Ed. 99; Davenport v. County of Dodge, 105 U. S. 237, 26 L. Ed. 1018; Rosenbaum v. Board (C. C.) 28 Fed. 223; U. S. ex rel. Reed v. Smallwood, 1 Chi. Leg. N. 321, Fed. Cas. No. 16,315. Without considering, therefore, in what cases, or to what extent, a review of the decision of the postmaster or of the Assistant Postmaster General, as respects the determination of the question of fact upon which the rating of postal matter depends, is either reviewable at all, or under a proceeding by mandamus (see Carrick v. Lamar, 116 U. S. 423, 6 Sup. Ct. 424, 29 L. Ed. 677), I must dismiss the application upon the ground first stated.58 58 The following cases in this collection are cases of mandamus: State v. Justices. 15 Ga. 408 (1854); People ex rel. Sheppard v. Ill. State Board of Dental Examiners, 110 Ill. 180 (1884); Illinois State Board of Dental Examiners v. People, 123 Ill. 227, 13 N. E. 201 (1887); Harrison v. People, 222 Ill. 150, 78 N. E. 52 (1906); Ex parte Sparrow, 138 Pa. 116, 20 Atl. 711 (1890); Ayers v. Hatch, 175 Mass. 489, 56 N. E. 612 (1900); People ex rel. Greenwood v. Board of Supervisors Madison Co., 125 Ill. 334, 17 N. E. 802 (1888); Allbutt v. General Council, 23 Q. B. D. 400 (1889); Potts v. Breen, 167 Ill. 67, 47 N. E. 81, 39 L. R. A. 152, 59 Am. St. Rep. 262 (1897); People ex rel. Bush v. Collins, 7 Johns. (N. Y.) 549 (1811); Gage v. Censors, 63 N. H. 92. 56 Am. Rep. 492 (1884): People ex rel. Lodes v. Department of Health, 189 N. Y. 187, 82 N. E. 187, 13 L. R. A. (N. S.) 894 (1907); People ex rel. Fonda v. Morton, 148 N. Y. 156, 42 N. E. 538 (1896); U. S. ex rel. Roop v. Douglass, 19 D. C. 99 (1890); U. S. v. Black, 128 U. S. 40, 9 Sup. Ct. 12, 32 L. Ed. 354 (1888); U. S. v. Hitchcock, 190 U. S. 316, 23 Sup. Ct. 698, 47 L. Ed. 1074 (1903); People ex rel. Raster v. Healy, 230 Ill. 280, 82 N. E. 599, 15 L. R. A. (N. S.) 603 (1907); People ex rel. Post v. Healy, 231 Ill. 629, 83 N. E. 453 (1908). SECTION 56.-CERTIORARI The writ of certiorari is used for the purpose of bringing up for review: 1. The judgment of a court, where appeal or writ of error is not a matter of right, but the higher court directs the case to be certified to it by the lower court for review. So under section 6 of the federal Circuit Court of Appeals Act of March 3, 1891 (U. S. Comp. St. 1901, p. 549).. 2. The conviction of an inferior court of criminal jurisdiction. See, e. g., Jackson v. People, 9 Mich. 111, 77 Am. Dec. 491 (1860), post. p. 475, and Schaezlein v. Cabaniss, 135 Cal. 466, 67 Pac. 755, 56 L. R. A. 733, 87 Am. St. Rep. 122 (1902), ante, p. 56. 3. The quasi judicial decisions of administrative authorities. It is only the latter application which is to be here considered. Hawkins, Pleas of the Crown, II, c. 27, one of the chief authorities for the writ, deals mainly with the second application. The best account of the writ as an administrative law remedy is an article by Prof. F. J. Goodnow on the Writ of Certiorari in 6 Polit. Science Quarterly, p. 493. SECTION 57.-SAME-AUTHORITIES AND ACTIONS SUBJECT TO WRIT BALL v. PATTRIDGE.59 (Court of King's Bench, 1666. 1 Sid. 296.) By statute Car. II it is enacted that there shall be certain Commissioners who shall have power to receive claims concerning the fens in Cambridge, Huntington, etc., and to decide the boundaries of them, and that they shall make decrees and return them in the petty bag in chancery. And motions were made several times for certiorari to remove the proceedings before the commissioners, and some were granted. But afterwards, on consideration of the statute, they resolve that no certiorari will lie. And if there shall be any [writ], it shall be procedendo, for (by THE COURT) this is a new judicature absolute in the commissioners by this new law, with which this court has nothing to do if they proceed according to the statute, for then it binds perpetually, but if they do not proceed according to statute then all is void and coram non judice, and the parties are at liberty to examine this in an action brought at common law. 59 The original report is in Norman French. REX v. INHABITANTS IN GLAMORGANSHIRE. (Court of King's Bench, 1700. 1 Ld. Raym. 580.) Orders were made by the justices of peace, for levying money, for repairing Caerdiffe bridge, by virtue of the 23 Eliz. c. 11. And it was objected by Mr. Earle and Mr. Lechmore, that this court cannot in this case grant a certiorari; because it was a new jurisdiction erected by a new act of Parliament, the trust of the execution of which is reposed in the justices, and this court has nothing to intermeddle with it; for if they proceed according to the statute, then there is no reason to remove their orders; but if not, then what they do is coram non judice, and void. And the parties may examine the legality of their proceedings in an action; and so it was held in a case of decrees made by commissioners upon the act for the fens. 1. Sid. 296, Ball v. Partridge; Hardr. 480, Terry v. Huntington; Cro. Car. 394, Nichols v. Walker. And no certiorari lies to remove orders made by commissioners of bankrupts. Sed non allocatur. For this court will examine the proceedings of all jurisdictions erected by act of Parliament. And if they, under pretence of such act, proceed to incroach jurisdiction to themselves greater than the act warrants, this court will send a certiorari to them, to have their proceedings returned here; to the end that this court may see, that they keep themselves within their jurisdiction; and if they exceed it, to restrain them. And the examination of such matters is more proper for this court. As in the case in question; whether the act of Queen Elizabeth impowers the justices to raise money to mend wears, and to determine the doubt upon the act. As to the cases of orders made by commissioners of sewers, and of the fens, the court is cautious in granting certioraris; and first they make inquiry into the nature of the fact, and what will be the consequence of granting the writ; because the country may be drowned in the mean time, whilst the commissioners are suspended by the certiorari. But that is only a discretionary execution of the power of the court. And as the commissioners of bankrupts he said, that they had only an authority, and not a jurisdiction. * * * Then exception was taken to the orders, that the money ordered to be levied was for repairing the wears, to do which they had no jurisdiction, but only to raise money for the repair of the bridge; and their authority being special, they ought to confine themselves within it. But HOLT, Chief Justice, held that, in regard that at the time of the making of the act, these wears were built as necessary to support the bridge, by virtue of the powers given by the act of the queen for rebuilding of the bridge, and were esteemed so then and ever since, this court will esteem them accordingly still; and FR.ADM.LAW-30 therefore consequential to the power for rebuilding and repairing of the bridge, and especially when they are averred to be so in the orders. And GOULD and TURTON, Justices, agreed. * * * 60 TREASURER OF CITY OF CAMDEN v. MULFORD. (Supreme Court of New Jersey, 1856. 26 N. J. Law, 49.) The CHIEF JUSTICE delivered the opinion of the court.61 This action is brought by the treasurer of the city of Camden to recover of the defendant the expenses of paving Pine street, in said city in front of the premises of the defendant. * * * Whether the ordinances of a municipal corporation are subject to removal and review by writ of certiorari has recently been questioned by high judicial authority; and although the point was not mooted upon the argument of this case, its importance demands consideration. In the case of People v. Mayor, etc., of New York, 2 Hill (N. Y.) 11, Mr. Justice Bronson, in delivering the opinion of the court said: "The powers exercised by the common council of the city of New York are for the most part either legislative, executive, or judicial, and a certiorari only lies to inferior courts and officers who exercise judicial powers. If it were not for a few modern cases, I should be of opinion that we have no authority to supervise in this way the acts, ordinances, and proceedings of the corporation of the city of New York, or, indeed, of any other corporation, public or private. All our city and many of our village corporations have been vested with very large powers within their respective limits; and, if a certiorari will lie to remove into this court an ordinance for constructing a sewer, it is difficult to see where we can stop short of reviewing all their acts in the same way, which looks to me like a great stretch of jurisdiction." In the Matter of Mt. Morris Square, 2 Hill (N. Y.) 14, it was held by the same learned. court (Mr. Justice Cowen delivering the opinion) that the acts of municipal corporations, if plainly judicial in their character, may be reviewed on certiorari. But he said a certiorari to reverse a mere corporate act is without precedent, though if it should be altogether * * * 60 Only a portion of this case is printed. "There was a mistake made by the commissioners of sewers, grounded upon this: that where St. 23 Hen. VIII, c. 5, says that the commissioners in several cases there mentioned shall certify their proceedings into chancery, afterwards by St. 13 Eliz. c. 9, it is enacted that thereafter the commissioners shall not be compelled to certify or return their proceedings, which they interpreted to extend to a certiorari; and thereupon they refused to obey the certiorari, but they were all committed; and yet the statute does not give authority to this court [King's Bench] to grant a certiorari, but it is by the common law that this court will examine, if other courts exceed their jurisdictions." Groenvelt v. Burwell, 1 Ld. Raym. 454, 469 (1699). 61 Only a portion of the opinion is printed. destitute of authority, and followed by a judicial decision, which would therefore be void for want of jurisdiction, the corporate act might be examinable on certiorari, as incidentally vitiating the latter. The effect of the principle thus stated would seem to be that if a city ordinance directs a sewer to be built and a street to be paved, and provides that the expenses of the improvement shall be assessed upon persons benefited, the assessment, being of a judicial character, may be reviewed on certiorari, and the validity of the ordinance thus incidentally drawn in question. But if the ordinance directs not only that the improvement shall be made, but that the expenses shall be borne by the landholders by or over whose property it may pass, the party aggrieved is not entitled to protection by the writ of certiorari. Whatever may be the rule upon this subject adopted in other states, it is certain that the remedy by certiorari in this state is more extensive and efficacious, and rests upon broader, and, as we apprehend, upon more reasonable, ground. * * * Thus it is habitually used as a remedy against unlawful taxation, either for state, county, township, or city purposes; and while the remedy has been denied in other states, as dangerous or prejudicial to the public welfare, no such evil has been experienced from the use of the remedy, while it has been found eminently salutary and efficacious as a protection to private rights against oppressive and illegal taxation. * * * One of the most familiar uses of the writ is to test the validity of the proceedings of surveyors and freeholders in laying out and confirming of public highways, though, according to some of the authorities, the laying out of streets and highways is the mere exercise of municipal or corporate power, without the semblance of judicial decision. * * * In the courts of New York and Massachusetts it seems to be well settled that the certiorari lies only to examine the validity of such ordinances of a municipal corporation as are of a judicial character, not such as are legislative or ministerial in their nature. * * * But as to what constitutes a judicial act the authorities are by no means agreed. The Supreme Court of New York have repeatedly held that an ordinance directing a sewer to be built is not a judicial, but a ministerial, act. In re Mt. Morris Square, 2 Hill 21; People v. Mayor, etc., of City of New York, 5 Barb. 43; People v. Mayor, etc., of City of Brooklyn, 9 Barb. 533. And this seems to be the opinion of Mr. Justice Vredenburgh, in State v. Newark, 25 N. J. Law, 426. But in Rochester White Lead Co. v. City of Rochester, 3 N. Y. (N. Y.) 467, 53 Am. Dec. 316, Mr. Justice Taylor, in delivering the opinion of the Court of Appeals, said the charter of the city of Rochester confers upon the common council power to cause common sewers, drains, vaults, and bridges to be made in any part of the city. The ordinance of the common council directing such public improvement is judicial in its nature, and extends immunity |