Richmond, C.
The only question presented for our consideration by either party is: First, the jurisdiction of the court; and second, the legality of the action in ousting appellee out of his position as president of the board of aldermen, and amoving him from the office of alderman.
It is contended by appellant that appellee has mistaken his remedy in the prosecution of the writ of certiorari; that he should have proceeded by quo warranto against his successor in office. If title of one in possession of an office was to be tried, it is conceded quo ivctrranto would be the appropriate remedy. But the relator in this case, being in possession of the office, seeks only a review of the proceedings taken by the hoai-d of alder[464] men which disturb him in the enjoyment of it. This can only be done by certiorari. Bradshaw v. City Council of Camden, 39 N. J. Law, 416.
The further contention of appellant is that by statute the board of aldermen are made the sole judges of the qualifications of its members, and that any action they may take in this particular is not a subject of review by the court. In other words, that they can proceed at any time to make or unmake aldermen, without their action being subject to review. “The unquestionable weight of authority in this country is, if an appeal be not given, or some specific mode of review provided, that the superior common-law courts will, on certiorari, examine the proceedings of municipal corporations, even although there be no statute giving this remedy; and, if it be found that they have exceeded their chartered powers, or have not pursued those powers, or have not conformed to the requirements of the charter or law under which they have undertaken to act, such proceedings will be reversed and annulled. An aggrieved party is in such case entitled to a certiorari ex debito justifica.” 2 Dill. Mun. Corp. § 926, and authorities cited.
Section 323 of the code (Gen. St. 1883) provides that ‘ ‘ the writ may be granted, on application, by any court of this state, except a justice’s, county or mayor’s court. The writ shall be granted in all cases where an inferior tribunal, board or officer, exercising judicial functions, has exceeded the jurisdiction of such tribunal, board or officer, and there is no appeal, noi\ in the judgment ,of the court, any plain, speedy and adequate remedy.”
It is not disputed that the controversy between the board of aldermen and appellee was judicial in its nature; and it is conceded that the powers of the hoard were sufficient for the determination of all questions involved in the controversy. As these were judicial questions, we we must regard the board itself as exercising judicial functions, and as exercising such functions in subordina[465] tion and subject to the supervision of the courts. It would be very unfortunate if an arbitrary, wanton and illegal exercise of the powers conferred upon such body were beyond the remedial interposition of the courts.
In Illinois it is held that the common-law writ of certiorari may issue from the circuit court to all inferior tribunals and jurisdictions, in cases where they exceed their jurisdiction, or where they proceed illegally, and there is no appeal or other mode of directly reviewing their proceedings. Miller v. Trustees of Schools, 88 Ill. 27; Commissioners v. Supervisors, 27 Ill. 141; Commissioners v. Harper, 38 Ill. 105; State v. Dowling, 50 Mo. 136.
This disposes of the preliminary question, and the next inquiry is to what extent can the court go in reviewing the proceedings?
Section 329 of the code (Gen. St. 1883) provides that ‘ ‘ the review upon the writ shall not be extended further than to determine whether the inferior tribunal, board or officer has regularly pursued the authority of such tribunal, board or officer.”
It is clear that the courts are confined to the question of jurisdiction, and the regularity of its exercise. To this extent, however, the review will be extended, notwithstanding the provision of section 3, article 2, of tho charter of the city of Denver provides that “each board shall be the sole judge of the qualifications, election and returns of its own members.” St. Paul v. Marvin, 16 Minn. 102 (Gil. 91); Whitney v. Board of Delegates, 14 Cal. 480; Railroad Co. v. Placer Co. 43 Cal. 366; Kendell v. Camden, 47 N. J. Law, 66.
While power is vested in the courts by certiorari to review the proceedings of all inferior jurisdictions, to correct jurisdictional errors, they will not re judge their judgments on the merits. The correctional power extends no further than to keep them within the limits of their jurisdiction, and to compel them to exercise, it. with [466] regularity. Chase v. Miller, 41 Pa. St. 410; Gibbons v. Sheppard, Brightly, Elec. Cas. 539. In the case at bar the superior court was not called upon, nor did it assume, to judge of the merits of the controversy between the board of aldermen and appellee, but merely to review the regularity of the proceedings of the board.
It is not necessary to look beyond the record in this case, and this brings us to the question of the legality of the action of the board in setting aside and annulling the election of appellee on the 7th of April, 1885.
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Richmond, C.
The only question presented for our consideration by either party is: First, the jurisdiction of the court; and second, the legality of the action in ousting appellee out of his position as president of the board of aldermen, and amoving him from the office of alderman.
It is contended by appellant that appellee has mistaken his remedy in the prosecution of the writ of certiorari; that he should have proceeded by quo warranto against his successor in office. If title of one in possession of an office was to be tried, it is conceded quo ivctrranto would be the appropriate remedy. But the relator in this case, being in possession of the office, seeks only a review of the proceedings taken by the hoai-d of alder[464] men which disturb him in the enjoyment of it. This can only be done by certiorari. Bradshaw v. City Council of Camden, 39 N. J. Law, 416.
The further contention of appellant is that by statute the board of aldermen are made the sole judges of the qualifications of its members, and that any action they may take in this particular is not a subject of review by the court. In other words, that they can proceed at any time to make or unmake aldermen, without their action being subject to review. “The unquestionable weight of authority in this country is, if an appeal be not given, or some specific mode of review provided, that the superior common-law courts will, on certiorari, examine the proceedings of municipal corporations, even although there be no statute giving this remedy; and, if it be found that they have exceeded their chartered powers, or have not pursued those powers, or have not conformed to the requirements of the charter or law under which they have undertaken to act, such proceedings will be reversed and annulled. An aggrieved party is in such case entitled to a certiorari ex debito justifica.” 2 Dill. Mun. Corp. § 926, and authorities cited.
Section 323 of the code (Gen. St. 1883) provides that ‘ ‘ the writ may be granted, on application, by any court of this state, except a justice’s, county or mayor’s court. The writ shall be granted in all cases where an inferior tribunal, board or officer, exercising judicial functions, has exceeded the jurisdiction of such tribunal, board or officer, and there is no appeal, noi\ in the judgment ,of the court, any plain, speedy and adequate remedy.”
It is not disputed that the controversy between the board of aldermen and appellee was judicial in its nature; and it is conceded that the powers of the hoard were sufficient for the determination of all questions involved in the controversy. As these were judicial questions, we we must regard the board itself as exercising judicial functions, and as exercising such functions in subordina[465] tion and subject to the supervision of the courts. It would be very unfortunate if an arbitrary, wanton and illegal exercise of the powers conferred upon such body were beyond the remedial interposition of the courts.
In Illinois it is held that the common-law writ of certiorari may issue from the circuit court to all inferior tribunals and jurisdictions, in cases where they exceed their jurisdiction, or where they proceed illegally, and there is no appeal or other mode of directly reviewing their proceedings. Miller v. Trustees of Schools, 88 Ill. 27; Commissioners v. Supervisors, 27 Ill. 141; Commissioners v. Harper, 38 Ill. 105; State v. Dowling, 50 Mo. 136.
This disposes of the preliminary question, and the next inquiry is to what extent can the court go in reviewing the proceedings?
Section 329 of the code (Gen. St. 1883) provides that ‘ ‘ the review upon the writ shall not be extended further than to determine whether the inferior tribunal, board or officer has regularly pursued the authority of such tribunal, board or officer.”
It is clear that the courts are confined to the question of jurisdiction, and the regularity of its exercise. To this extent, however, the review will be extended, notwithstanding the provision of section 3, article 2, of tho charter of the city of Denver provides that “each board shall be the sole judge of the qualifications, election and returns of its own members.” St. Paul v. Marvin, 16 Minn. 102 (Gil. 91); Whitney v. Board of Delegates, 14 Cal. 480; Railroad Co. v. Placer Co. 43 Cal. 366; Kendell v. Camden, 47 N. J. Law, 66.
While power is vested in the courts by certiorari to review the proceedings of all inferior jurisdictions, to correct jurisdictional errors, they will not re judge their judgments on the merits. The correctional power extends no further than to keep them within the limits of their jurisdiction, and to compel them to exercise, it. with [466] regularity. Chase v. Miller, 41 Pa. St. 410; Gibbons v. Sheppard, Brightly, Elec. Cas. 539. In the case at bar the superior court was not called upon, nor did it assume, to judge of the merits of the controversy between the board of aldermen and appellee, but merely to review the regularity of the proceedings of the board.
It is not necessary to look beyond the record in this case, and this brings us to the question of the legality of the action of the board in setting aside and annulling the election of appellee on the 7th of April, 1885.
In support of the position assumed by appellant, our attention is called to the case of Darrow v. People, 8 Colo. 417. It is claimed by appellants’ attorney that this opinion warranted the proceedings taken by the board of aldermen, and that their conduct in passing the resolution and ousting appellee from office was in fact directed by the court; that the court, having determined that they were the sole judges of the qualifications of the members of the board, practically determined that their action was not the subject of review by any court; that the manner and form of removing a person from the office of alderman was absolutely and exclusively within the jurisdiction of the board of aldermen, without the power of review by the courts; that the manner and form of their action could not be reviewed. We do not so understand the opinion of this court in that case. On the contrary, we think a careful review of the opinion will sustain altogether a different position; for the court say, on page 423: “It often happens that the particular fact which renders a party ineligible to hold a given position is unknown to the public until long after his election and induction into office. It is even true that sometimes such disability is not discovered by the candidate himself until he has for a considerable period been performing his official duties. An obligation rests upon the council, when the question is properly presented, to investigate the alleged disability, and, if it be proven, to [467] oust the incumbent, though his term of office be about to expire. There is a marked difference between canvassing the vote, and declaring the result of such canvass, and investigating a charge of prior disqualification which may afterwards be presented. While the present counsel cannot perform the former duty, they are certainly in a position to discharge the latter. If any rules or regulations are essential to a proper investigation of alleged disqualifications of aldermen, the same may be supplied.” This language clearly implies that an investigation upon a charge of prior disqualification -was contemplated. It cannot be claimed that the court intended, or even intimated, that one who had been duly elected, duly qualified, duly inducted into office as an alderman, could be summarily removed by resolution upon a charge of disqualification without notice, without hearing or investigation of any kind. The contrary is the strict letter and spirit of the opinion, and, in our judgment, is in keeping with the majority of authorities upon this question.
It is admitted by the demurrer, and the record discloses the fact to be, that the introduction of this resolution, and its passage, was without any notice to appellee, and in opposition to his direct protest. That he was present when the resolution was passed argues nothing in support of the action of the board. He was present as a member of the board; and, when so present, urged a postponement of any action, and asked an opportunity to be heard in opposition to the charges. It is merely recited in the resolution that he has confessed his disqualification for the office. How, when, where, to whom, does not appear. The mere recital does not prove the truth of the allegation. “Much is not proven because much has been said.” Can it be said that the ipse dixit of one or more individuals to the effect that appellee had confessed that he was not a tax-payer within a year prior [468] to his election to office is sufficient of itself to warrant his summary removal from office?
Not a single authority is produced on the part of appellants in support of this action by the board, and we are confident that not one can be produced. 1 Dill. Mun. Corp. §§ 245, 250, 253, 254, lays down these rules: “When the terms under which the power of amotion is to be exercised are prescribed they must be pursued with strictness. Whether, if the power to expel or remove be given for certain causes, this excludes the right to exercise the power in any other case, will depend upon the intent of the legislature, to be gathered from a consideration of the whole charter or statute.”
“Where an officer is appointed during pleasure, or where the power of removal is discretionary, the power to remove may be exercised without notice or hearing. But where the appointment is during good behavior, or where the removal can only be for certain specified causes, the power of removal cannot be exercised, unless there be a charge against the officer, notice to him of the accusation, and a hearing of the evidence in support of the charges, and an opportunity given to the party of making a defense.” “ The proceeding, in all cases where the amotion is for cause, is adversary or judicial in its character; and, if the organic law of the corporation is silent as to the mode of procedure, the substantial principles of the common law as to proceedings affecting private rights must be observed.”
“First, the officer is entitled to a personal notice of the proceeding against him and of the time when the trial body will meet. * * * But it should contain the substantial fact that a proceeding to amove is intended. * * * There must be a charge or charges against him specifically, stated with substantial certainty, and reasonable time and opportunity must be given to answer the charges and to produce his testimony; and he is also [469] entitled to be heard and defended by counsel, and to cross-examine the witnesses, and to except to the proofs against him. If the charge be not denied, still it must, if not admitted, be examined and proved.” Mead v. Treasurer, 36 Mich. 419; Murdock v. Trustees, 12 Pick. 244; Page v. Hardin, 8 B. Mon. 668; 2 Wat. Corp. 557, § 312; Ang. & A. Corp. § 429; Field v. Com. 32 Pa. St. 484; Dullam v. Willson, 53 Mich. 392.
The line of authority is not by any means exhausted, but enough have been cited to show that the action of the board in this case cannot be upheld as a legal and proper exercise of the power conferred. The judgment should he affirmed.
Pattison and Reed, CC., concur.
Per Curiam.
For the reasons stated m the foregoing opinion the judgment is affirmed.
Affirmed.