Pine Bluff Water & Light Co. v. City of Pine Bluff

35 S.W. 227, 62 Ark. 196, 1896 Ark. LEXIS 166

Opinion

Battle, J.

Does the writ of certiorari lie to review the ordinance of the city of Pine Bluff which is in question in this proceeding?

At common law, the writ lies only to review the judicial action of inferior courts, or of public officers or bodies. When the action of the officers or public bodies is purely legislative, executive, and administrative, although it involves the exercise of discretion, it is not reviewable on certiorari.

Footnotes

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* But it is not essential that the officers or bodies to whom it lies shall constitute a court, or that their proceedings, to be reviewable by the'writ, should be strictly and technically “judicial,” in the sense that word is used when applied to courts. It is sufficient if .they are what is.termed “quasi judiy cial.” It has been held that it lies to review the proceedings of officers and bodies, because they are quasi judicial, in the following cases: of supervisors, commissioners, and city councils in opening, widening, altering, or discontinuing public streets and highways (Parks v. Boston, 8 Pick. 226; Tucker v. Rankin, 15 Barb. 471); assessments for sewers or other improvements, (Attorney General v. Northampton, 143 Mass. 589); “of school trustee (Miller v. Trustees, 88 Ill. 26; State v. Whitford, 54 Wis. 150); of a town board in removing an assessor (Merrick v. Arbela, 41 Mich. 630); of a city council removing a city officer (Mayor v. Shaw, 16 Ga. 172; People v. Nichols, 79 N. Y. 582; People v. Hayden, 27 N. Y. Sup. 881); of a city council in grant-mg a ferry license (Ex parte Fay, 15 Pick. 243); of a board of supervisors in ordering an election to re-locate a county seat (Herrick v. Cerpenter, 6 N. W. Rep. 574); of a board of supervisors in creating the office of clerk of said board, and raising certain salaries which had been fixed by statute (Robinson v. Supervisors, 16 Cal. 208); of proceedings of directors of a township directing their secretary not to certify a tax that had been voted (Smith v. Powell, 55 Iowa 215); of proceedings of commissioners in granting or refusing to grant a liquor license (People v. Commissioners, 25 N. Y. Sup. 322; Dexter v. Town Council (R. I.), 21 Atl. Rep. 347); and of proceedings of a board of equalization (Orr v. State Board, 28 Pac. Rep. 416). There are other proceedings of officers and public bodies which it lies to review, because they are quasi judicial, but those mentioned are sufficient to illustrate the rule.

Scope of the •writ under the code.

But it is insisted that the ordinance before us is reviewable on certiorari, under section 1125 of Sand. & H. Dig. That section provides that circuit courts “shall have power to issue writs of certiorari to any officer or board of officers, or any inferior tribunal of their respective counties, to correct any erroneous or void proceeding, and to hear and determine the same.” Literally construed, this section gives to circuit courts the power to correct, on certiorari, every erroneous act of any and all officers, board of officers, and- inferior tribunals, and even to correct all their void acts. How this can be done is difficult to comprehend. It is evident it was not intended to be understood in that sense. How, then, can its meaning be determined except by aid of the common law ? In St. L., I. M. & S. Company v. Barnes, 35 Ark. 99, this court held that it did not so enlarge the office of the writ “as to make it answer the ends of an appeal or writ of error, for the correction of mere errors in judicial proceedings.” In that case the court confined the writ to its office as defined by the common law. By what process of reasoning it can be limited in that respect, and not in others, I am unable to understand.

of^uydlty ordinance,

The “Code of Practice in Civil Cases” and its amendments, of which this statute is a part, were not intended as an amendment of the system of pleading and practice prevailing at the timé of its adoption, but as a substitute for “any case provided for by” it “or inconsistent with its provisions.” (Section 857). This being-the object of it and its amendments, it is evident that so much of section 1125 of the-Digest as we have quoted was not intended to amend the common law by enlarging the office of the writ, but, presumably knowing its office at common law, the legislature adopted it, and made it a part of the code, as it was of the common law pleading and practice, and thereby intended to authorize the circuit courts, by means of it, to review judicial and quasi judicial proceedings of’ officers, boards of officers, and inferior tribunals, and no other.

The ordinance under consideration is purely legisla- .. - . . . 1 - .. , tive, and is not reviewable on certiorari.

The judgment of the circuit court denying the writ is affirmed.

People v. Walter, 68 N. Y. 403; People v. Mayor, 2 Hill, 9; In re Mount Morris Square, id. 14, State v. Kemen, 61 Wis. 494; People v Board, 43 Barb. 232; People v. Board Com'rs, etc., of New York. 97 N. Y. 37; People v. Board of Sup'rs of Qtteens County (N. Y.), 30 N. E. Rep. 488; Whittaker v. Venice (Ill.), 37 N. E. Rep. 240; Drainage Com'rs v. Giffin (Ill.), 25 N. E. Rep. 995; Esmeralda Co. v. District Court, 18 Nev. 438; People v. Martin, 142 N. Y. 228; State v. Board of Aldermen (R. I.), 28 Atl. 347; 2 Dillon, Mun. Corp. (4 Ed.), sec. 927; 2 Spelling, Extraordinary Relief, sec. 1954.