little discretion or judgment are required, was referred to in Public Officers, §103, elsewhere in this volume. The distinction is also important here. An instance of the exercise of certiorari over a body not strictly judicial is the case of Drainage Commissioners v. Griffin (31) where the commissioners had decided that lands outside the original district were benefited by the drainage system and so had enlarged the district to include them. The court said: "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. 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 called quasi judicial. The body of officers acting need not constitute a court of justice in an 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." In this case sufficient notice had not been given the owners of land in the annexed district, and on account of the resulting lack of due process of law in the proceedings the judgment quashing them was affirmed. Another class of quasi judicial proceedings in which certiorari is frequently invoked is that of removals for cause. §31. Same (continued). A case where the tribunal was held not to be acting judicially is that of In re Saline (31) 134 III. 330. County Subscription (32) where the county court had subscribed for $400,000 of the stock of a railroad company, and certiorari was asked charging a want of authority to make the subscription and issue the bonds. The court said: "All the cases are inconsistent with the idea that the exercise of a discretionary power given by law to the county court of Saline county, if it be given to make a subscription to the stock of a railroad, can be in any sense a judicial proceeding. A court has no discretion, but must render judgment according to the facts and the law, while this subscription might have been made or refused. The judges were bound, it is true, to act with good judgment, judiciously, but exercising a sound judgment is by no means synonymous with rendering judgment, and acting judiciously is not always acting judicially." § 32. Inadequacy of other remedies. It is generally stated that, if appeal may be had or a writ of error, certiorari will not lie. But this is not always true where appeal or error will not be equally effective. Thus, in State v. Guinotte (33), on being advised of the result of a will contest in the circuit court, the executrix had applied to the probate judge to be reinstated, and her request was granted and the temporary administrator ordered to turn the property over to her, notwithstanding an appeal in the will contest. The court considered that relief by appeal would be inadequate, and on certiorari quashed the order of reinstatement. (32) 45 Mo. 52. § 33. Discretion in granting. As with the other extraordinary remedies there is generally a very considerable discretion in granting the writ. Thus in Newell v. Hampton (34) where a certiorari had been granted to review a case involving a mechanic's lien, a motion was made to quash the certiorari on the ground that it had been improvidently issued. The court granted the motion and said: "The allowance of a writ of certiorari is a matter of sound judicial discretion. That it is not a matter of right necessarily follows from the fact that it may be denied in some cases, as where there is otherwise an adequate remedy, or the point involved is not a matter of any serious complaint or injury. So where substantial justice has been done, though the record may show the proceedings to be defective and informal but only technical errors or inaccuracies appear." SECTION 5. HABEAS CORPus. § 34. Origin and history. It was declared as far back in the history of England as the Magna Charta (1215) that there should not be denied or deferred to any man either justice or right; but the first traces of the writ of habeas corpus as we have it to-day do not seem to go back of the fourteenth century. Then it seems to have been used as a means of relief from private restraint, but it came to be used against the crown in the reign of Henry VII. Nevertheless, in the reign of Charles I the court of king's bench determined that it would not lie either to bail or deliver a prisoner, though committed without any cause assigned, in case he was committed by the special com (34) 1 Marvel (Del.) 1. mand of the king, or by the lords of the privy council. This occasioned the petition of rights (1628), and this was followed soon afterwards by a statute allowing the writ even where the arrest had been made by the king or the privy council, and requiring a determination to be made on the legality of the commitment within three court-days after the return was made. Under Charles II, further abuses crept in so that a third writ might be necessary before the production of the party. This resulted in the famous habeas corpus act of Charles II (1679), which, however, only applied to the cases of persons committed or charged with crime, and then not to cases of treason or felony. Other cases were left to the common law. Some of the provisions of the new act were that the writ should be returned and the prisoner brought up within a limited term, according to the distance, not exceeding in any case twenty days; that persons not making due returns, or refusing to deliver a copy of the commitment papers within six hours after demand, or shifting the custody of the prisoner from one person to another should forfeit one hundred pounds to the person aggrieved for the first offense, and two hundred pounds for the second; and that no person once delivered by habeas corpus should be recommitted for the same offense on penalty of five hundred pounds (35). § 35. Purpose of the writ. In Ex parte Coupland (36), Coupland claimed that he had been illegally placed, by the provost marshal, in the custody of R. T. Allen, a colonel in the Confederate service; but Allen answered (35) 3 Blackstone's Comm. 130, ff. (36) 26 Tex. 387. to the writ that before its service upon him Coupland had been drafted as a soldier into the Confederate army and that it was only in that capacity that he was detained. In the lower court Coupland had been remanded to the custody of Allen. From this he appealed, and before this appeal had been heard had deserted. It was moved that the application should be continued: first, on the ground that the court had no jurisdiction on the application if the relator were not present; and second, on the ground that if the court had jurisdiction, it would not exercise it while the relator was at large. The court said: "There is no doubt that in answer to the writ the respondent must produce the body of the person alleged to be illegally detained, if in his custody or under his control at the service of the writ, unless excused from so doing by the circumstances indicated in article 149, code criminal procedure; and that a return to the writ, unaccompanied by the body, will be scanned with great caution (37). And although this is to prevent evasions of the writ and to secure the liberty of the citizen, yet, if the party has been released from custody previous to the service of the writ, its object and purpose has been accomplished, and the court will make no order on the subject. The only object of the writ is to relieve the party detained from the illegal restraint; if this is accomplished before the jurisdiction of the court attaches by the service of the writ, there is nothing upon which it can attach. It is not the object or purpose of the writ to punish the respondent, or afford the party redress for his illegal detention. But the question occupies a (37) Hurd, Habeas Corpus, 244. |