Certiorari

A writ issued by a superior to an inferior court of record, or other tribunal or officer, exercising a judicial function, requiring the certification and return to the former of some proceeding then pending, or the record and proceedings in some cause already terminated, in cases where the procedure is not according to the course of the common law. The extensive use of this writ and the lack of precise judicial definition of the public bodies and proceedings to which it is applicable lend interest to the early common law definitions, which are of value since the use of the writ is still usually regulated by common law principles and precedents. The most frequently quoted common law definitions are those of Fitzherbert and Bacon, by the first of which the writ lies in the case of records of the courts, the treasury, sheriffs, coroners, commissioners, escheators; F. N. B. 554 A. He includes among forms given one to the mayor and sheriff of London in case of indictment and attachment and one to the mayor and sheriffs of York in assize of fresh force sued out before them without writ; id. 554 E, 557 L. Bacon uses only the general terms, "judges or officers of inferior courts"; Bac. Abr. Sl62; but in an enumeration of instances entitled "to what court it lies" he puts an "inquisition taken by a sheriff... and the verdict and judgment thereon," which were quashed on the ground that, if it is not prohibited by the act of Parliament"; id.

168, citing 4 Burr. 2244.

It was said that "the substance of this (Bacon's) definition has never been departed from, except where the statute has broadened the scope of the writ"; In re Dance, 2 N. D. 184, 49 N. W. 733, 33 Am. St Rep. 768. The English Court of Appeal says that "certiorari Is a writ in aid of justice, and is the apt means of preventing the infliction or continuance of wrong from any assumption or excess of Jurisdiction"; 2 L. R. (K. B.) 318; it is matter of discretion, not of right; id. Blackstone refers only to it as a means of removing criminal causes from an inferior court to the King's Bench, as the supreme court of criminal jurisdiction; 4 Bla. Com. 265; or cases of Peers to the House of Lords; id. 321; or after summary order in a lower court which might be quashed or confirmed; id.

272.

It might be granted at the instance of either prosecution or defendant, in the former case as matter of right, in the latter as matter of discretion; id.

3-1.

The function of the writ is to secure the correction of errors of a Judicial nature in the proceedings of inferior courts or in the decisions of special tribunals, commissioners, magistrates and officers exercising judicial powers affecting the property or rights of a citizen, who act in a summary way, and not according to the course of the common law, and it also applies in many cases to the proceedings of municipal corporations. It has also been allowed when the power is ministerial but necessarily connected with judicial action; People v. Hill, 65 Barb. (N. Y.) 170; In re Nichols, 6 Abb. N. C. (N. Y.) 474. The writ is issued in two classes of cases: (1) Where the inferior court has exceeded its jurisdiction; (2) where it has proceeded illegally and there is no appeal or writ of error; White v. Wagar, 185 111.

195, 57 N. E. 26, M L R. A. 60, quoting Hyslop v. Finch, 99 111.

171. "Official acts, executive, legislative, administrative or ministerial in their nature or character, were never subject to review by certiorari. The writ could be issued only for the purpose of reviewing some judicial act;" People v. Bra N. Y. 44, 47, 59 N. E. 701; St. Louis, S. F. & T. Ry. Co. v. Seale, 229 U. S. 156, 33 Sup. Ct. 651, 57 L Ed. —. In some states the writ has been abolished by statute so far as the common law name is concerned, but the remedy is preserved under the new statutory name of "writ of review"; but this term and the old one mean precisely the same remedy, except so far as it may be modified by statute; People v. County Judge, 40 Cal. 479; Sutherlin v. Roberts, 4 Or. 388; Southwestern Telegraph & Telephone Co. v. Robinson, 48 Fed. 771, 1 C. C. A 91. So where, by statute, appellate proceedings are to be taken by appeal in all cases theretofore covered by error, appeal or certiorari, but the right of review is not changed in extent, it was held that the appeal was in eifect a common law certiorari, and the right to issue a certiorari remained the same as before; Rand v. King, 134 Pa. 641, 19 Atl. 806; so an appeal in a habeas corpus case is equivalent to a certiorari and brings up only the record; Com. v. Superintendent of Philadelphia County Prison, 220 Pa. 401, 69 Atl. 916, 21 L. R. A. (N. S.) 939.

— The writ lies in most of the states to remove from the lower courts proceedings which are created and regulated by statute merely, for the purpose i a; Com. v. West Boston Bridge, 13 Pick. (Mass.) 195; Bath Bridge & Turnpike Co. v. Magoun, 8 Greenl. (Me.) 203; Bob v. State. 2 Zerg. (Tenn.) 17.".; Williamson v. Carnan, 1 <;. & J. (Md.) 196; Adams v. Newfane, 8 Vt. 271; People v. Lawrence, 54 Barb. (N. Y.i 589; John v. Statt-, 1 Ala. 05; People v. Supervis- Smith, 110 N. C. 417, 14 S. E. 972; Miller v. Trustees, 88 111. 27; and to complete the proceedings when the lower court refuses to do so, upon erroneous grounds; Anonymous, 2 N. C. 302; Auditor v. Woodruff, 2 Ark. 73, 33 Am. Dec. 368; and to correct errors in law; Mc Allilley v. Horton, 75 Ala. 491; Rawson v. Mc Elvaine, 49 Mich. 194, 13 N. W. 513; Lapan v. Cumberland County Com'rs, 65 Me. 160; Couover v. Davis, 48 N. J. L. 112, 2 Atl. 667. In England; 13 E. L. & Eq. 129; 9 L. R. Q. B. 350; and in some states; State v. Stone, 3 H. & McH. (Md.) 115; State v. Hunt, 1 N. J. L 2S7; People v. Vermilyea, 7 Cow. (N. Y.) 141; Com. v. Mc Ginnis, 2 Whart. (Pa.) 117; State v. Washington, 6 N. C. 100; John v. State, 1 Ala. 95; Kenney v. State, 5 R. I. 385; the writ may also be issued to remove criminal causes to a superior court; Har. Certiorari 8. But see Winn v. State, 10 Ohio 345. It also lies where a probate court proceeds without jurisdiction in admitting a claim against an estate; Durham v. Field, 30 111. App. 121;

— or where the court has jurisdiction but makes an order exceeding its power; State v. County Court, 45 Mo. App. 387. It is also given by statute to review the acts and powers of official boards and officers; Haven v. County Com'rs, 155 Mass. 467, 29 N. E. 1083; State v. City of Ashland, 71 Wis. 502, 37 N. W. 809. The writ has been used to review the proceedings of courts-martial; Rathbun v. Sawyer, 15 Wend. (N. Y.) 451; of canal appraisers charged with acting without notice; Fonda v. Canal Appraisers, 1 Wend. (N. Y.) 288; of commissioners of appeal in cases of taxation; State v. Falkinburge, 15