from private action for damages to those who perform the duty. In Parks v. Boston, 8 Pick. 218, 19 Am. Dec. 322, the Supreme Court of Massachusetts held that the power vested in the mayor and aldermen of Boston, as to laying out or altering streets, whenever, in their opinion, the safety or convenience of the inhabitants shall require it, is judicial in its character. 62 But this is questioned and pronounced anomalous by Mr. Justice Cowen in Re Mt. Morris Square, 2 Hill 22.

The true principle seems to be that ordinances directing the mere repairing or repaving of streets or reconstructing of sewers or bridges, which are enjoined upon municipal corporations as matters of duty, are purely ministerial, but that ordinances directing new streets to be opened or altered, new sewers to be constructed, or other similar public improvements to be made, by which the property of individuals is taken or affected, are in their nature judicial. So where a municipal corporation is authorized by ordinance to require the paving of streets, not as a matter of ordinary repair, but upon specified conditions only, and to impose the burthen not upon the city treasury, but upon a specific class of individuals, the ordinance is in its nature judicial. These powers and duties are in their character very similar, and in many particulars identical with those imposed by the act of Parliament (21 Hen. VIII, c. 5) upon the commissioners of sewers in England. The orders of these commissioners have always been held to be judicial in their character, and subject to review by certiorari.

*

*63

DRAINAGE COM'RS v. GRIFFIN.

(Supreme Court of Illinois, 1890. 134 Ill. 330, 25 N. E. 995.) BAILEY, J. This was a common-law writ of certiorari, brought to review certain proceedings of the commissioners of the Mason & Tazewell Special Drainage District. * *Said proceedings resulted in an order by said commissioners enlarging the boundaries of said district in accordance with the prayer of the petition. Various of the owners of the land thus annexed presented to the circuit court of Tazewell county their petition for a certiorari, alleging, among other things, that the proceedings by which the boundaries of said district had been enlarged were irregular, and without juris

62 In this case the writ of certiorari was allowed.

63 Certiorari allowed to review action in laying out highways in Commissioners of Highways v. Harper, 38 Ill. 103 (1865); People v. Brighton, 20 Mich. 57 (1870); Boston & Maine R. R. v. Folsom, 46 N. H. 64 (1865); State v. Fond du Lac, 42 Wis. 287 (1877).

Certiorari not allowed to review tax proceedings in Michigan. Whitbeck v. Hudson, 50 Mich. 86, 14 N. W. 708 (1880).

64 Only a portion of the opinion of Bailey, J., is printed.

diction or lawful authority on the part of said commissioners, and praying that the record of said proceedings be brought before said court, and that said order of annexation to or extension of the boundaries of said special drainage district, and the entry thereof in the records of said district, be reversed, set aside, and annulled. On said petition a writ of certiorari was duly issued and served, and thereupon said commissioners made return to said writ by certifying to said court the record of said proceedings. On inspection of said record, the court entered judgment quashing the same, and ordering that it be forever held for naught. Said judgment was affirmed by the Appellate Court (28 Ill. App. 561), and an appeal has now been taken to this court. * * *

It is strenuously urged that certiorari is not the proper remedy, the contention being that the petitioners should have resorted to an information in the nature of a quo warranto. We need not pause to determine whether quo warranto would lie or not, as we know of no rule which, in this case, would make that remedy necessarily exclusive, even if it should be held to be a proper or available remedy. The only question is whether the alleged defects in the proceedings for the enlargement of the drainage district are such as can be reached and remedied by writ of certiorari, and this question is in no way dependent upon whether a writ of quo warranto might not also lie to oust the drainage commissioners of their control over the territory annexed, or to dissolve the organization of the drainage district so far as it applies to that territory. The writ of certiorari is a well-known common-law writ, and in England the court of King's Bench has always been in the practice of awarding it to inferior jurisdictions, commanding them to send up their records for inspection. By adopting the common law, we have adopted this as a recognized legal remedy, and in this state any court exercising general, common-law jurisdiction has, unless expressly forbidden to do so by the statute, an inherent authority to issue it. People v. Wilkinson, 13 Ill. 660; Miller v. Trustees, 88 Ill. 26; 3 Am. & Eng. Enc. Law, tit. "Certiorari." Neither in England nor in this state is it held to be a writ of right, but it issues, in proper cases, only upon application to the court, on proper cause shown.

We have repeatedly held that said writ may be awarded to all inferior tribunals and jurisdictions where it appears that they have exceeded the limits of their jurisdictions, or in cases where they have. proceeded illegally, and no appeal is allowed, and no other mode is provided for reviewing their proceedings. Gerdes v. Champion, 108 Ill. 137; Doolittle v. Railroad Co., 14 Ill. 381; Railroad Co. v. Whipple, 22 Ill. 105; Railroad Co. v. Fell, 22 Ill. 333. The purpose of the writ is to have the entire record of the inferior tribunal brought before the superior court to determine whether the former had jurisdiction, or had exceeded its jurisdiction, or had failed to proceed according to the essential requirements of the law. The

trial is solely by inspection of the record, no inquiry as to any matter not appearing by the record being permissible, and, if the want of jurisdiction or illegality appears by the record, the proper judgment is that the record be quashed.

Undoubtedly, where the controversy involves the investigation of facts not appearing upon the record, certiorari is not the proper remedy. Thus, if in the present case the right to have the proceedings by which the lands in question were annexed to the drainage district set aside, and the drainage commissioners ousted of the corporate authority they now claim to exercise over said lands, depended upon facts which could be established only by evidence de hors the record, the writ of certiorari would manifestly be of no avail. It may be admitted that in such case quo warranto would be the exclusive remedy. But here the want of jurisdiction, if it exists at all, appears upon the face of the record. If, then, the proceedings of the drainage commissioners enlarging the boundaries of the district constitute a subject-matter which may be reviewed by certiorari, that must be held to be an appropriate remedy.

The general rule seems to be that this writ lies only to inferior tribunals and officers exercising judicial functions, and the act to be reviewed must be judicial in its nature, and not ministerial or legislative. Locke v. Lexington, 122 Mass. 290; State v. Mayor, 34 Minn. 250, 25 N. W. 449; In re Wilson, 32 Minn. 145, 19 N. W. 723; Robinson v. Supervisors, 16 Cal. 208; Ex parte Fay, 15 Pick. (Mass.) 243; Stone v. Mayor, etc., 25 Wend. (N. Y.) 157; Esmeralda Co. v. District Court, 18 Nev. 438, 5 Pac. 64; Thompson v. Multnomah Co., 2 Or. 34. But it is not essential that the proceedings should be strictly and technically "judicial," in the sense in which that word is used, when applied to courts of justice. It is sufficient if they are what is sometimes termed "quasi judicial.” The body or officers acting need not constitute a court of justice in the ordinary sense. If they are invested by the legislature with the power to decide on the property rights of others, they act judicially in making their decision, whatever may be their public character. Robinson v. Supervisors, supra.

Thus it is held that this writ lies to review the proceedings of supervisors, commissioners, city councils, etc., in opening, altering, or discontinuing public streets and highways as to their legality, or regularity, though not as to the question of the expediency of such improvements. 3 Am. & Eng. Enc. Law, 65, and authorities cited in note 4. So, also, in some states, it has been held, subject to the foregoing qualification, to be the proper writ to correct illegalities in the levying of taxes and local assessments by assessors, commissioners, etc. (Id.), though in this state it has been refused where the defense of illegality could be made at the hearing of the application for judgment (Pease v. City of Chicago, 21 Ill. 500). The writ has also been held to lie to review the action of school trustees in uniting

and in dividing school districts (Miller v. Trustees, 88 Ill. 26; State v. Whitford, 54 Wis. 150, 11 N. W. 424); or of a town board in removing an assessor (Merrick v. Town of Arbela, 41 Mich. 630, 2 N. W. 922); or of a city council in removing a city officer (Mayor v. Shaw, 16 Ga. 172); or of a city council in granting a ferry license (Ex parte Fay, 15 Pick. [Mass.] 243); or of a board of supervisors in ordering an election to relocate a county seat (Herrick v. Carpenter, 54 Iowa, 340, 6 N. W. 574); or of a board of supervisors in creating the office of clerk of said board, and raising certain salaries which had been fixed by statute (Robinson v. Supervisors, 16 Cal. 208). The foregoing are a few of the many cases where this writ has been held to lie, and sufficiently illustrate the rules above stated.

The proceedings by which the boundaries of the drainage dis-. trict in question were enlarged by the drainage commissioners were, at least in most of their important features, judicial in their character. The commissioners were required to ascertain and determine from evidence whether the requisite number of the adult owners of land in the district had signed the petition for the annexation of the adjoining lands, and whether the signers were the owners of the requisite proportion of the lands embraced within the district. They were also required to ascertain and determine from evidence whether the lands sought to be annexed to the district were involved in the same system of drainage, and required for outlets the drains of the district. When these facts were determined judicially, and not till . then, were the commissioners authorized by the statute to enter their order annexing said lands. From their decision no appeal was given, nor were any other means provided by the statute for reviewing their proceedings. In every point of view then the case comes within that class of cases where certiorari is an appropriate remedy.

But, as the appellants insist that a different rule has been announced by this court in various of its decisions, we will briefly consider the cases to which we are referred as sustaining that contention. Renwick v. Hall, 84 Ill. 162, Keigwin v. Commissioners, 115 Ill. 347, 5 N. E. 575, Evans v. Lewis, 121 Ill. 478, 13 N. E. 246, and Samuels v. Commissioners, 125 Ill. 536, 17 N. E. 829, were all cases in chancery, and it was held that there was no jurisdiction in a court of equity, for the reason that there was a complete and adequate remedy at law, and that the legal existence of the several corporations involved in those cases could be determined by an information in the nature of a quo warranto. Trumbo v. People, 75 Ill. 561, People v. Newberry, 87 Ill. 41, Osborn v. People, 103 Ill. 224, and Blake v. People, 109 Ill. 504, were proceedings for the collection of either school taxes or special assessments, and the principle decided in those cases was that the various school districts and drainage districts in question in those several suits were at least corporations de facto, and that the legality of the organization

of a corporation could not be attacked collaterally. Alderman v. Directors, 91 Ill. 179, was trespass, and the plaintiffs were directors. of a de facto district; and the same rule was there declared. In Hinze v. People, 92 Ill. 406, it was held that quo warranto would lie against persons who assume to hold offices supposed to be created by a law claimed to be invalid by reason of being in contravention of the Constitution; and in People v. Board, 101 Ill. 308, 40 Am. Rep. 196, it was held that quo warranto also lies against a corporation which undertakes to exercise powers which it does not possess.

There is nothing decided in any of these cases which shows or tends to show the validity of either of the propositions insisted upon by the appellants in this case. All that is determined by those cases may be admitted, and yet non constat that the common-law writ of certiorari does not lie in the present suit. No doubt some expressions were used in the opinions of several of those cases from which it might be inferred that an information in the nature of a quo warranto was the only mode of testing the legality of the formation of an existing de facto corporation, but that question did not arise and was not decided in those cases.

However, in the case of Lees v. Commissioners, 125 Ill. 47, 16 N. E. 915, it was expressly held that the common-law writ of certiorari cannot be resorted to for the purpose of determining whether a corporation has a legal existence, and that the validity of its organization can be questioned only by quo warranto. But there is this marked distinction between that case and this: There the corporate existence itself of a quasi municipal body was sought to be challenged by certiorari, while here such existence is fully admitted, and the only thing sought to be done is to call in question the validity of an order of a municipal body admitted to be a corporation both de facto and de jure, extending the boundaries of the drainage district. It seems eminently proper, and in consonance alike with the intention of the statute and the rules and analogies of the common law, that a proceeding, the object of which is to forfeit or destroy that corporate life which emanates solely from the sovereign power of the state, should be instituted by the attorney general or state's attorney of the proper county. It is said, in section 778, Ang. & A. Corp., citing in that behalf Rex v. Pasmore, 3 Term R. 244, 245, and Regents, etc., v. Williams, 9 Gill & J. (Md.) 365, 31 Am. Dec. 72, that "a quo warranto is necessary where there is a body corporate de facto, who take upon themselves to act as a body corporate, but, from some defect in their constitution, cannot legally exercise the powers they affect to use." It appears, however, from the same section, and from the authorities there cited, that where there is a legally existing corporation, capable of acting, which has been guilty of an abuse of power, or of its franchises, then, not only will an information in the nature of a quo warranto lie, but scire facias as well.