SECTION 63.-SAME-CERTIORARI

PEOPLE ex rel. CHURCH v. ALLEGANY COUNTY SUP'RS. (Supreme Court of New York, 1836. 15 Wend. 198.)

Certiorari to county board of supervisors.

BRONSON, J.92 * * * The question, then, involved in this proceeding, is whether the tax lists of the several towns in the county of Allegany, in which the relator was assessed in the year 1832, and the warrants issued to the collectors, shall be quashed and annulled for irregularity. What would be the probable consequences of such a judgment as we are asked to pronounce? How many hundreds of suits would it authorize against each of the twenty-six supervisors, who are defendants, and what would be the condition of the several officers who have collected the tax? If the relator has a right to prosecute the writ ex debito justitiæ, these inquiries should have no influence upon the disposition which is to be made of the cause. The court must pronounce its judgment, and leave the consequences to others. But if, in awarding writs of this description, the court is to exercise a sound legal discretion, and grant or refuse the process as the ends of justice and the public interest may require, we are not at liberty to shut our eyes to the consequences which may follow from entertaining this proceeding. It is not necessary to decide that actions could be maintained, either against the supervisors or the collectors, in the event of a judgment in favor of the relator. It is enough that such suits would probably be brought, and it is not entirely clear, to say the least, that they could not be maintained.

In the exercise of the superintending power of this court over inferior jurisdictions, the writ of error is a writ of right, and issues. on conforming to such regulations as have been prescribed by law. But the writ of certiorari, especially in those cases where it is used for the purpose of reviewing the acts and decisions of the special jurisdictions which are created by statute, and do not proceed according to the course of the common law, such as boards of supervisors, commissioners of highways, and the like, does not issue ex debito justitiæ, but only on application to the court and special cause shown. The reason is that these bodies exercise powers in which the people at large are concerned, and great public detriment or inconvenience. might result from interfering with their proceedings. The writ cannot be allowed by a judge at chambers, but only by the court itself. Starr v. Trustees of Rochester, 6 Wend. 565; Comstock v. Porter, 5 Wend. 98; Albany Water Works Co. v. Mayor's Court, 12 Wend.

92 Only a portion of the opinion of Bronson, J., is printed.

292. In The King v. Eaton, 2 T. R. 89, on a motion for a writ to remove á conviction before a justice of the peace, Buller, J., said that the rule requiring the defendant to lay a ground before the court for granting a certiorari had obtained since the time of Charles II, and he cited a case of that day, where it was held as clear law that a certiorari ought not to be granted in vacation, but in open court, and upon a ground shown. Commonwealth v. Downing, 6 Mass. 72; State v. Vanderveer, 7 N. J. Law, 38.

In Arthur v. Commissioners of Sewers, 8 Mod. 331, it was remarked by one of the judges that "a writ of certiorari was not a writ of right, for if it was it could never be denied to grant it; but it has often been denied by this court, who, upon consideration of the circumstances of the case, may deny it, or grant it at discretion." And Bacon (Abr. tit. "Certiorari," A) says, although the writ ought of right to be issued at the instance of the king, for the purpose of removing an indictment, yet the court "has a discretionary power in granting or refusing it at the suit of the defendant." He cites cases in which the court has refused to grant the writ. In Ludlow v. Ludlow, 4 N. J. Law, 387, Kirkpatrick, C. J., says the very issuing of such a writ is the exercise of a high judicial power, and must, in its nature, be discretionary. In Lees v. Childs, 17 Mass. 351, it was held that an application for certiorari was addressed to the discretion of the court, and would not be granted, but on showing probable cause for supposing that injustice has been done. In Ex parte Weston and Others, 11 Mass. 417, the court held the same doctrine; and although that was a case which did not affect the public, but the rights of individuals only, the court said that before granting a certiorari they would always look into the record, and even into the circumstances attending the process, "because, when the record is actually returned, in obedience to the writ of certiorari, they are bound to quash the whole proceeding, if error should appear." * * 93

*

INHABITANTS OF RUTLAND v. WORCESTER COUNTY COM'RS.

(Supreme Judicial Court of Massachusetts, 1838. 20 Pick. 71.)

PER CURIAM.94 A petition for 2 writ of certiorari is well understood to be addressed to the discretion of the court. When the record is before the court upon the return of the writ, the court will look only at the record. For this reason it would be futile to

93 Accord: People ex rel. Vanderbilt v. Stilwell, 19 N. Y. 531 (1859); People ex rel. David v. Hill, 53 N. Y. 547 (1873); People ex rel. Corwin v. Walter, 68 N. Y. 403 (1877); People ex rel. Waldman v. Board of Police Com'rs, 82 N. Y. 506 (1880).

94 Only a portion of the opinion is printed.

admit evidence to contradict the record, on the petition for a certiorari; but, it being within the discretion of the court to grant or refuse the writ, evidence extrinsic to the record may very properly be received, to show that no injustice has been done, and that a certiorari ought not to be issued. The petitioners in the case before us will in the first place exhibit the record and point out in what particulars they deem it to be erroneous or defective; and then the respondents may prove by extrinsic evidence that no injustice has been done, that if the proceedings shall be quashed the parties cannot be placed in statu quo, or that for any good reason a certiorari ought not to be granted. If such evidence shall be offered by the respondents, the petitioners will of course have a right to rebut it by like evidence.

TRUSTEES OF SCHOOLS OF TOWN 21 N., RANGE 5 W. v. SCHOOL DIRECTORS OF UNION DISTRICT.

(Supreme Court of Illinois, 1878. 88 Ill. 100.)

Mr. Chief Justice SCHOLFIELD delivered the opinion of the court. The only question we deem it necessary to consider in the present case is whether appellee should be held to be barred from inquiring into the validity of the act of detaching territory from the one school district and adding it to the other, by reason of the laches in suing out the certiorari.

The writ of certiorari, when used for the purpose of correcting the proceedings of inferior tribunals, is not a writ of right; but it issues only upon application to the court, upon special cause shown. Bath Bridge Co. v. Magoon, 8 Greenl. (Me.) 293; Drowne v. Stimpson, 2 Mass. 441; Lees v. Childs, 17 Mass. 352; Huse v. Gaines, 2 N. H. 210; Munro v. Baker, 6 Cow. (N. Y.) 396; People v. Supervisors, 15 Wend. (N. Y.) 198; State v. Senft, 2 Hill (S. C.) 367; Rockingham v. Westminster, 24 Vt. 288. And the reason is said to be because these bodies exercise powers in which the people at large are concerned, and great public detriment or inconvenience might result from interfering with their proceedings. People v. Supervisors, supra. As a corollary it follows that, whenever great public detriment or inconvenience might result from interfering with their proceedings, the writ of certiorari should be denied. And, on this principle, in Elmendorf v. Mayor, etc., 25 Wend. 693, the Supreme Court of New York refused a certiorari to remove the proceedings of the common council of New York, changing the grade of certain streets, three years and a half after the confirmation. It is true, in that state a writ of error would not lie, under the statute, after the expiration of two years, and it was said the court would, by analogy

95 Accord: Hyslop v. Finch, 99 Ill. 171, 179 (1881).

to the statute, in ordinary cases, refuse a certiorari after the lapse of that period; but the decision was placed expressly upon the ground that there had been unreasonable delay, and that serious consequences to the city must result from allowing the writ. Nelson, C. J., who delivered the opinion of the court, said: "I place my refusal to allow the certiorari upon the unreasonable delay in the application for it, and the serious consequences to the city which must necessarily follow the granting of it after such a lapse of time, during which the improvement has been finished, and two-thirds of the assessment paid by owners." This principle is also recognized and applied in Rutland v. County Com'rs, etc., 20 Pick. (Mass.) 79, 80; In re Lantis et al., 9 Mich. 324, 80 Am. Dec. 58; Chamberlain v. Berclay, 13 N. J. Law, 244; Bell v. Overseers, 14 N. J. Law, 131; Dailey v. Bertholomew, 1 Ashm. (Pa.) 135.

It is not questioned but that there was power to detach territory from the one district and add it to the other; but it is only objected that the power had not been exercised by the proper officers in the mode prescribed by the statute. It would, therefore, seem very clear that the omission complained of is one that would have been supplied by a subsequent express ratification of the act, and, if this be true, we know of no reason why in this, as in many other instances of defective execution of powers by corporations, a ratification may not be inferred from acquiescence. In Metz et al. v. Anderson et al., 23 Ill. 469, 76 Am. Dec. 704, this court, arguendo, said: "But if it could be shown that the order changing the districts, by consolidating two districts into one, was an unwarrantable exercise of power, it might, with propriety, be claimed that there has been an acquiescence in it by the functionaries of the now complaining district 9." In this view, the doctrine of the cases above referred to must be held to be conclusive in the present case.

The petition here was filed July 15, 1875, and the action of the trustees complained of was had in April, 1872, over three years before. A proper plat of the districts, as constituted after the changes effected by the action of the board, was made and filed with the county clerk at the time; and thereafter the school funds were apportioned in accordance with such changes, and the presumption is that taxes for school purposes were thus levied and collected. It may be, also, that debts have been incurred in building or repairing school houses, or for other legitimate school purposes, upon the faith of the action of the trustees, now for the first time sought to be questioned.

The case, in our opinion, is clearly one where, by reason of the lapse of time and the acquiescence of the party now complaining in the distribution of school funds, the levy and collection of school taxes, and, possibly, the incurring of debts, upon the faith of the action of the trustees, it was improper to allow the writ; but, having been allowed, it should have been quashed, on motion.

It is better, if it shall be desirable, by appropriate steps through the

proper school officers, to reorganize the districts as they were before, than to open up an indefinite field of strife and litigation by now nullifying the action of the trustees, and thereby declaring everything done pursuant thereto illegal.

Some question was made in argument as to the right to consider this question on appeal, but we presume not seriously, since the right of appeal now exists, by statute, from all final judgments.

It is true the court below was invested with discretion, to some extent, whether to grant or to refuse the writ; but that discretion did not authorize the granting of the writ in a case where, by law, it clearly ought not to have been granted. The discretion was not an arbitrary one, but one to be exercised in subordination to legal principles, and we may always inquire whether those principles have been adhered to or departed from. The judgment is reversed. Judgment reversed."

SECTION 64.-SAME-QUO WARRANTO

PEOPLE ex rel. LEWIS v. WAITE.

(Supreme Court of Illinois, 1873. 70 Ill. 25.)

Appeal from the criminal court of Cook county; Lambert Tree, Judge.

This was an application by the state's attorney for leave to file an information of the relator, in the nature of a quo warranto, against George W. Waite. The opinion of the court gives a summary statement of the case and the facts. The relator appealed.

Mr. Justice Scorr delivered the opinion of the court.

Our statute, in relation to informations in the nature of a quo warranto, is a substantial, if not a literal, copy of 9 Anne, c. 20, on the same subject. The granting of leave to file such informations has uniformly been held, both in this country and in England, to be within the sound discretion of the court. Leave is not given as a matter of course, but a court ought not arbitrarily to refuse leave, but should exercise a sound discretion, according to law. Dillon on Mun. Corp. § 722; State v. Tehoe, 7 Rich. 246; Commonwealth v. Arrison, 15 Serg. & R. (Pa.) 133, 16 Am. Dec. 531; People v. Sweeting, 2 Johns. (N. Y.) 184; King v. Hythe, 6 Barn. & Cres. 247; King v. Peacock, 4 Term R. 684; King v. Stacy, 1 Term R. 1.

The mode for instituting such proceedings is, usually, as pursued in the case at bar. The state's attorney submitted a motion, based on affidavit, for leave to file an information in the nature of a quo war

96 Accord: Chicago v. Condell, 224 Ill. 595, 79 N. E. 954 (1906).