Same 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. may be concurr! Nor do we perceive any good reason why a municipal body, which other remedies has exceeded its jurisdiction and has proceeded illegally, may not, on sound legal principles, be proceeded against by quo warranto, by scire facias, or by the common-law writ of certiorari, indifferently, as the one or the other may afford a proper and sufficient remedy. All of these several writs are direct remedies afforded by the law, and, in respect to neither of them, can it be said that it is a collateral attack upon the legal existence or organization of the corporation. As has already been suggested, this court has expressly held, in Miller v. Trustees, 88 Ill. 26, that the common-law writ of certiorari was an appropriate remedy to bring before the circuit court for review the proceedings of a board of trustees of schools consolidating two school-districts into one; and that seems to be going quite as far, if not further, than is demanded by the requirements of the present ATTORNEY GENERAL v. MAYOR AND ALDERMEN OF (Supreme Judicial Court of Massachusetts, 1887. 143 Mass. 589, 10 N. E. 450.) Petition, filed April 12, 1886, by the Attorney General, at the Jo quash procesofs appointed under St. 1884, c. 320, for a writ of certiorari to quash of mayor counced the proceedings of the respondents in the matter of the appoint-appty police & ment of a police officer of Northampton, said appointment being alleged volati alleged to be in violation of the rules prepared by said commission-Cars. rules. Demis ers. The case was heard by W. Allen, J., and reserved for the consideration of the full court. relation of the civil service commissioners of the commonwealth, MORTON, C. J. We are of opinion that the petitioner has mis- Wrong remedy. taken his remedy in this case. As was stated by Chief Justice Gray isn in Locke v. Selectmen of Lexington, 122 Mass. 290, "a writ of this is n. gotact certiorari lies only to correct the errors and restrain the excesses of jurisdiction of inferior courts or officers acting judicially." It lies to correct the errors of inferior courts, or judicial officers, acting in proceedings not according to the course of the common law, and where errors cannot be corrected by appeal, or exceptions, or by a writ of error. Lynch v. Crosby, 134 Mass. 313. Thus, it is the proper remedy to revise the proceedings of county commissioners, or of city councils, or of boards of aldermen, when they act in matters like the laying out of highways, or making assessments for sewers or other improvements. The reason is that, in such matters, they act judicially, and not merely as ministerial 65 See Kinsloe v. Pogue, 213 Ill. 302, 72 N. E. 906 (1904), removal of county seat; Moore v. City Council of Perry, 119 Iowa, 423, 93 N. W. 510 (1903). or executive officers. Parks v. Boston, 8 Pick. 218, 19 Am. Dec. The appointment of police officers by the municipal authorities ho involvy discuts volves the exercise of judgment and discretion; but it is adminis черворбиринчасть trative, and not judicial, in its character. No one has the right to We are therefore of opinion that certiorari is not the proper rem- Petition dismissed." 66 Accord: People ex rel. McDonald v. Bush, 40 Cal. 344 (1870). But see лью uch native a minister ald not a a judicial Wildy ch" even when done -judge ashire." Fr. 521 Fr. 401,659 Compare People ex rel. Mack v. Burt, 170 N. Y. 620, 63 N. E. 1121 (1902), affirming without opinion 72 N. Y. Supp. 567 (1901), holding action of civil service commissioners in classifying or not classifying places in the civil service to be administrative and not reviewable by certiorari, with People ex rel. Sims v. Collier, 175 N. Y. 196, 67 N. E. 309 (1903), holding action in rating position as competitive or noncompetitive to be judicial, and not controllable by mandamus. In the latter case the court says: "That such decisions are reviewable by the courts must be regarded as settled, for the question whether competitive examinations for appointment to particular places are practicable or not has been held to be a question of law, to be decided in the light of the facts and the evidence bearing upon the subject." "The board of health did act, and had a right to act, upon its own inspec- So, also, Hartman v. Wilmington, 1 Marv. (Del.) 215, 41 Atl. 74 (1894). Certiorari to review action of railroad commission, see People ex rel. *02/186 explaius ministerial as executive. in 40/344 11/272. BrofJe - of Pomonality dcclared & of city marshal vacaut appte new man. new man. Cs won lie "not a job act"."."declaring act : " declaring I vacancy) was a part of the orderapponly does not indicate a jol Ingry & determin" " SECTION 58.-SAME-SCOPE OF REVIEW; WHAT KINDS (Supreme Court of Michigan, 1860. 9 Mich. 111, 77 Am. Dec. 491.) Certiorari to the recorder's court of the city of Detroit, where Jackson was convicted on a complaint for obstructing an alley in said city. * * * CAMPBELL, J.67 The first question which arises is, how far are we at liberty to look into the proceedings returned by the recorder's court, to ascertain whether the recorder erred in any respect within our supervisory control? It is claimed on behalf of the people that, upon a certiorari at com- Ang for people! mon law, the only thing to be determined is whether the court be- Cert qoes only ary power of the court cannot be inquired into. And it is further to nejn claimed that the jurisdiction depends upon the subject-matter of the sto ct caut complaint. Applying this rule to the case before us, it is insisted that the recorder's court has jurisdiction of all complaints for ob- quire шарига structing alleys, and that, this jurisdiction being called into exercise excise of it. by such a complaint, its proceedings thenceforth are not examinable Recordnict unless an unauthorized judgment is given beyond the one allowed by law. As the same immunity from review applies to all special tri- had of com becomes very important to ascertain how far this doctrine is cor- alleys What qno an suby to gol engr Jolengri Jitle to prop privileges determined by the general tribunals of the state. These signed to decide between man and man, or to administer general Scope of me laws. They are ordained to prevent disorder in matters of local 67 Only a portion of this case is printed. cts •. bylaws Of the p/c Goodnow says (6 Pes 2527) Cooley regarded the 44. strict rule" accords with who only the record was returned conly jontgns consederet as not supported by the early Eugt cases; & in order & stion that evid sort side the record might originally be relumed he cites a series of cases. Dist of these buriout to be cases with cummary convectis were bang exam" Result of porns they can incidentally decide upon the rights of private property, so The power of reviewing upon certiorari judicial proceedings of In New York, a series of decisions have appeared from time to My distruction laken time, asserting that when certiorari is given by statute it lies to correct any legal mistakes, but where issued as at common law it 2 CL. cest to renew can only review the jurisdiction of the court below. It is unnecesJurison only. sary to refer particularly to these authorities, inasmuch as in MoreSatyent review wood v. Hollister, 6 N. Y. 309, this distinction seems to be regarded my legal mistake, as unfounded, and the office of the writ is considered as reaching all errors of law. We have examined with much care all the English Insupported out indeed, cases where a certiorari lies to examine errors generally. and others where it lies only to inquire into the jurisdiction; but There are many statutes in England which, not only in large terms or by acknowledged implication, the right to a certiorari, which * * * If certiorari will lie for want of jurisdiction in cases where the common-law remedy of certiorari, in its usual acceptation, is expressly or confessedly taken away, it follows as an unavoidable conclu ли mmary are by the es. The onf cases citedly & Cooley we do not relate to mle plsimply prove that on C: fol facts and be returned considered wh was the rule my as shown & Peo. Goverom 5^y 508 (parts) that in Engole purps of the b was not to ramat mu Clauses shoung 8 Boter. 137 Deuterd log 3. We cannot assume to be them of actiferror merave en further arques that the old big ruce musthave been the liberalong the fact retraces on the that had shut out the is the It may still we it review thegn of for the modregulent wol bicced isadveling. |