The Writ of Certiorari

The Writ of Certiorari
Author(s): Frank J. Goodnow

Source: Political Science Quarterly, Vol. 6, No. 3 (Sep., 1891), pp. 493-536
Published by: The Academy of Political Science
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THE WRIT OF CERTIORARI.
I. History of the Writ in England.
M ANY of the present features of the writ of certiorari

which is to-day, in our country, the chief means by which
the courts review administrative action - can be understood only
by a study of its early history. Like most of the English writs,
it was originally a prerogative writ; i.e. it was issued by the
King by virtue of his position as fountain of justice and supreme
head of the whole judicial administration. But unlike most of
its fellows, which have become what are known as writs ex debito
/ustitiae, or writs of right, the certiorari has preserved to a great
extent - perhaps to a greater extent than any other writ - its
original characteristics as a prerogative writ.
What now is meant, more precisely, by a prerogative writ ?
To answer this question requires an acquaintance with the posi-
tion of the Crown in the administration of justice at the time
that this writ was developed.
One of the most important powers which accrued to the
Anglo-Saxon chieftains in the transition from the ducal to the
royal dignity was judicial supremacy. The King was the
supreme head of the nation with power over life, limb and prop-
erty. The judicial supremacy did not, however, give him the
right of pronouncing judgment; for this, in accordance with
the Teutonic institution of popular courts, belonged to the
members of the community. What it gave him was power to
appoint the persons, viz. the sheriffs, who as royal representa-
tives called the popular courts together; to see that justice was
rendered in case of its denial; personally to judge those power-
ful litigants who could not be controlled by the popular courts;
and to execute or have executed the sentences of the courts.1
1 Gneist, Constitutional History of England (English translation, G. P. Putnam's
Sons), vol. i, p. 23.
493
494 POLITICAL SCIENCE QUARTERLY. [VOL. VI.
In the Anglo-Saxon system of administering justice the Norman

conquest at first introduced less change than in the other
branches of government. While in other matters the early
Norman Kings were absolute, in matters pertaining to the
administration of justice the system was much the same as
before the conquest. William the Conqueror bound himself
solemnly to " maintain the good and well-tried laws of Edward
the Confessor." This promise meant that the law should be
administered " by the same persons, and for the same persons,
and according to the same principles as in the Anglo-Saxon
days." '
It is to be noted, however, that the Norman Kings reserved
to themselves from the beginning the decision of all cases
affecting the Crown, - including the more important criminal
offences, which were regarded as violations of the King's peace,
- and also all cases affecting the revenue.2 The judicial pro-
ceedings which these cases necessitated were had before the
King and the advisers whom the transaction of public business
had forced him to summon to his side, and who, when united,
formed what was known as the Curia Regis or Aula Regis, the
court or household of the King.3 Here the barons acted as
judges, the King on their advice giving sentence. Soon this
essentially judicial business, which was continually increasing,
was attended to always by the same persons, and these persons
got the name of justices, one of them being called the chief
justice or justitiar. This Curia Regis soon increased its
jurisdiction. The ancient customary process of the local
courts, with that strict maintenance of formalities and that
incapacity for regarding equitable considerations which seems
inseparable from the ideas of compurgation and ordeal, was
becoming antiquated. As a special favor, suits that belonged
before the popular courts were allowed to be brought before the
Curia Regis, to be decided by such new methods as the wisdom
of the King and his counsellors might invent; and from the
Curia Regis began soon to issue a series of writs which directed
1 Gneist, op. ci. p. 165. 2 ibid. pp. I68, 171-

8 Stubbs, Constitutional History of England, vol. i, PP. 387-390.
No. 3.] THE WRIT OF CERTIORARI. 495
inquiry and recognition of rights as to land, the obligations of

tenure, the legitimacy of heirs and the enforcement of local jus-
tice. These writs were undoubtedly derived from the process of
the Carolingian lawyers. They were the expedients by which
the jus honorarium of the King as fountain of justice was en
to remedy the defects of the jus civile or commune as applied
the local popular courts.' The extension of the jurisdiction of
the Curia Regis was accelerated by the partiality of the sheriffs
who held the popular courts, and by the fact that in these
courts race prejudices were found to influence the decisions.2
Soon the officers of the Curia Regis were sent about the coun-
try; at first, in the time of Henry I, with no great regularity;
but later, periodically.3 These officers were known as the itine-
rant justices or the justices in eyre. They sat in the local
courts, often taking the place of the sheriff.4
In II78 Henry II made great changes in this system. He
found that there were too many justices in the Curia Regis to
do the work effectively. He therefore chose five of his own
immediate servants, two clerks and three laymen, before whom
he ordered the complaints of the people to be brought, but re-
served the most difficult cases for his own hearing, to be decided
as before, i.e. in the Curia Regis. This delegation of certain
of the justices " to hear all complaints and do right " is regarded
as the origin of the court of King's Bench, because the five
judges chosen were to sit in banco. All financial suits, i.e. suits
relating to the royal revenue, were still to be decided by the old
Curia Regis, which, when organized for this purpose, was known
as the Exchequer. As a result of Magna Charta, which pro-
vided that free persons and free property were to be judged ac-
cording to the law of the land, a special court split off from the
Exchequer. The Exchequer proper henceforth exercised admin-
istrative functions only. The new special court came to be
known as the court of the Exchequer. It was organized simi-
larly to the court of King's Bench. The adoption of Magna
Charta resulted also in the formation of another court, viz. the
Stubbs, op. cit. I, pp. 387-39I. 2 Gneist, op. cit. I, I68.

8 22 Henry II, Statute of Northampton. 4 Gneist, op. cit. I, 392.
court of Common Pleas. Magna Charta provided that the comn

munia placita, common pleas or civil suits, were to be held at
some fixed place and were not to follow the King about on his
journeys throughout the country; accordingly, the seat of this
court was fixed at Westminster.' The itinerant justices of the
Curia Regis were soon replaced by the justices of nisiprius and
assize, who were members of the royal courts.2 In this way the
entire administration of justice fell into the hands of the judges
of the royal courts. But notwithstanding the formation of these
common law courts, the King remained as before the fountain
of justice; for, as we have seen, at the time of the formation of
the court of King's Bench the King reserved to himself the
decision of the most difficult cases. This reserved justice re-
sulted later in the formation of other courts which have played
a most important part in the development of English law.3
Further, the development of these royal law courts did not
shut the people out of all participation in the administration of
justice. The judges appointed by the King were for the most
part officers of a professional character; that is, they were edu-
cated in the law; but it was only the decision of the question
of law that was taken out of the hands of the people and given
into the hands of these judges. The decision of the question
of fact was still rendered by the people, or by committees of the
people which developed into the English jury.
By the end of the thirteenth century, as a result of this devel-
opment, the judicial supremacy of the King was something
quite different from what it had been at the beginning of the
Norman period. The King was now the supreme head of the
judicial system, the fountain of justice, in a sense until then
unknown to the middle ages. He was in judicial matters what
he was in other matters- practically absolute. All the judges,
both at the centre and in the localities, were paid servants of
the King and subject to his disciplinary power.4 While actually
I Stubbs, op. cit. I, 486, 6oI; Gneist, Op. cit. I, 386. 2 I3 Edw. I, c. 30.
8 Stubbs, op. cit. I, 603; Palgrave, Essay on the Authority of the King's Council.
4 For example, we find Edward I removing his chief justice and fining others for
extortion and corruption. Gneist, op. cit. I, 391.
working on separate lines, the three central courts remained

formally connected with the King's personal representative, the
Chancellor. From his office proceeded all the writs which were
formulated by the King and his advisers, and by which actions
were commenced.' By the time the royal courts were fully
developed most of these writs were no longer writs of grace,
granted by the King in his good pleasure, but were issued to
litigants upon proper demand de cursu and became known fin-
ally as writs ex debito justitiae. Before long the court to which
the application was made issued the necessary writ directly,
without the intervention of the Chancellor.2
It was thus that the court of King's Bench received the power
to issue a series of writs -viz. mandamus, certiorari, prohibi-
tion and quo warranto- through which it controlled the action
of the other courts. The King's Bench was regarded as the
highest court in the land, with a superintendence over all other
courts; and, as there was no conscious distinction between jus-
tice and administration in these early days, over all lower author-
ities, whatever their nature. This position of superiority over
the other authorities was due to the fact that the King was sup-
posed always to sit in the King's Bench.3 But although the
writs just mentioned were issued without the intervention of the
Chancellor, they never became writs ex debitojustitiae or de cursu,
since it was only in extraordinary cases that they were issued
and only when some gross injustice was being done by other
authorities. It remained the function of the King, through his
1 "The defendant in the cases in the royal courts was summoned into court by
writ original under the King's seal," which was kept in the office of the Chancellor.
Palgrave, op. cit. p. 8.
2 Thus King John gave to the Chief Justitiar authority to issue five writs; among
them the important real-property writs of mort d'ancestor, novel disseizin and de
recto. In the time of Edward I the clerks of the Chancellor were also allowed to
issue in plain cases new writs in consimili casu, from which came the action on the
case. - Gneist, op. cit. I, 394; Palgrave, op. cit. pp. i6, 17; Reeves, History of the
English Law, II, 394, 507, 605.
8 The King's Bench was the "curia ubiquefuerimus in Anglia." Bracton speaks
of its judges as " chief, general, perpetual and superior, residing by the side of the
King, who are to correct the injustice and errors of a11 others." See Gneist, op. cit.
I, 384
court of King's Bench,' to judge of the ne

and they accordingly came to be known as prerogative writs.
And they came to be regarded as among the most important
judicial remedies. It must, however, be remembered, when we
speak of judicial remedies or of judicial bodies in these early
times, that we do not mean what would be meant at the present
time by such expressions. As has been shown, the judges of
these tribunals had no fixed tenure. Like other royal officers,
they were subject to the disciplinary power of the King; and
the King not unfrequently made use of his power to influence
their decisions.2 Not only was the tenure of the judges the
same as the tenure of royal officers in general, but there was no
distinction made between judicial and administrative business.
The justices of the peace, who had become the most important
administrative officers in the localities (taking the place origi-
nally occupied by the sheriffs), had many important judicial
duties to perform, and were regarded as judges - just as much
so as the members of the royal courts. The court of King's
Bench had powers of control over the justices of the peace, just
as it had over all other authorities. It controlled the adminis-
tration of government as well as that of justice. The reason
why the King permitted the court of King's Bench to exercise
such a control over administrative matters is to be found in the
tenure of its judges, and in the fact that the King had still
powers of reserved justice. He could exercise the strongest
personal influence over the judges of the royal courts; and, if
he found that the administration of the law was becoming too
formal and technical to permit of efficient administration, he
might exercise his reserved powers and transfer any matter to
1 Some of these writs were issued by the Council, i.e. the Curia Regis, even after
the development of the court of King's Bench. Thus the first.case of mandamus on
record, in the time of Edward II, was returnable to the Council. I Ryley's Plead-
ings, 534. But a case is referred to in Burrow's Reports, p. 2190, where this wr
issued from the King's Bench. The first recorded case of quo warranto is found on
the roll of the Curia Regis. Abbreviatio Placitorum, p. 21. Later, however, the
King's Bench obtained the practically exclusive power to issue these prerogative
writs.
2 Witness the famous Hampden case in the court of the Exchequer. The judges
were for the first time made independent of the King by the Act of Settlement, 1701.
a newly created jurisdiction.' Thus was formed in the time of

Henry VII the court of the Star Chamber, in order to control
the nobility who had grown turbulent during the Wars of the
Roses.2 To this court was given a control over the actions of the
justices of the peace which aimed at correcting not merely their
decisions upon questions of law, -these were practically the
only questions that came up before the King's Bench, -but
also their decisions on questions of fact ,and of expediency.3
Established originally to protect the weaker classes from the
tyranny of the nobility, this court was used by the Stuarts in a
fashion that led to its abolition in I640. The result of its aboli-
tion was to remove the justices of the peace from all central
control except that which was exercised by the court of the
King's Bench over their decisions on questions of law. To pro-
vide some sort of control over the justices acting separately,
which should extend to their decisions on questions of fact and
expediency, a series of acts of Parliament permitted the indi-
vidual, when injured by the act of a justice, in specified cases to
appeal to the court of Quarter Sessions of the county.4 This court
consisted of all the justices of the county sitting together. As
a result of these statutes, appeals might be taken to the Quarter
Sessions from almost all acts of the justices affecting property
rights or personal liberty.5 There was thus formed in each
county, for the decision of administrative questions, a court
whose jurisdiction embraced both questions of law and questions
of fact or expediency. Further, the commission of the justices
of the peace enjoined upon them in difficult cases to take the
I Cf. Palgrave, O01. cit. pp. 57-6I.

2 Other instances of the exercise of the reserved justice of the King are to be
found in the establishment of the court of Chancery and of the Council of the
North and the Council of the West. To deal with the religious questions resulting
from the Reformation was established the court of High Commission. Later exam-
ples may be found in the establishment of the Probate and Divorce courts, after this
jurisdiction had been taken away from the ecclesiastical courts, and finally in the Judi-
cial Committee of the Privy Council for ecclesiastical and colonial appeals. Cf Stubbs,
op. cit. I, 603.
8 Cf Palgrave, op. cit. pp. ioi-io8.
4 See Smith, Practice at Quarter Sessions (London, I882), title Appeals.
6 Gneist, Das Englische Verwaltungsrecht (I884), p. 397.
advice of the royal courts. This came to be done finally by

stating a case which was agreed upon by the justices and the
parties before them, and which was then submitted to the royal
courts and was finally decided by them.'
In consequence of these facts the certiorari lost much of its
earlier importance in England, and its employment there became
less frequent.2 It had served the purpose of bringing proceedings
of the justices, and of subordinate tribunals generally, before the
King's Bench for review.3 It was often used as a sort of an
appellate proceeding, e.g. against the convictions and orders of
justices of the peace;" but it was more often used for the pur-
pose of removing a case before final judgment, where for some
reason it was believed that a fair and impartial trial could not
be had. Indeed the most common use of the writ in early
times seems to have been to remove indictments before the
justices. The reason why it was less often employed in appel-
late proceedings is to be found in the existence of the other
methods of appeal from the final judgments of the justices
which have been pointed out. Finally, the certiorari was also used
in the course of ordinary appellate proceedings to bring up the
record of the lower court from whose decision appeal had been
taken, on the ground that the record as sent up was incomplete.
This was called technically "certiorari for diminution of the
record." 5 The writ of certiorari was therefore used from the
beginning for three distinct purposes; first, as a means of
removing a cause; second, to review a determination; and
third, as means of correcting diminution in another proceeding
-i.e. as an auxiliary remedy.
It is to a consideration of the certiorari as an independent appel-
late proceeding that this article will be devoted. In our country
this is by far its most important use; because, for a number of
reasons, we have been unable to develop generally any such
I Smith, op. cit. p. 518. 2 Gneist, Verwaltungsrecht, p. 406.

S The certiorari " lieth where the King would be certified of any record." Fitz-
herbert, Natura Brevium, p. 554. "The end of the writ is that more sure or speedy
justice be done." Bacon's Abridgement, I, 559.
4 Hawkins, Pleas of the Crown, vol. iv, p. 145, ?? 3, 4, p. i56.
5 Tidds' Practice, II67, citing Cro. Eliz. I55.
NO. 3.] THE WRIT OF CERTIORARI. 501
methods of appeal from administrative decisions as have been

created in England-any such methods as the appeal to the
Quarter Sessions or the "statement of the case." There are,
indeed, throughout our Southern commonwealths instances of
appeals from the decisions of administrative officers to the
county courts (which have largely taken the place in this coun-
try of the English courts of Quarter Sessions); and there are
a very few instances of such appeals in other commonwealths.
But in general our only method of appeal from administrative
decisions has been by certiorari, and we have therefore been
obliged to give to this writ a development which has greatly
enlarged its scope and usefulness. Before I attempt to trace
this development, it will be well to indicate how far the certiorari
has retained its original prerogative characteristics, and what
courts may issue the writ in the United States.
II. Character of the Wrt in the United States.
In this country the general tendency has been to strip the cer-
tiorari of its prerogative character, and to reduce it to the posi-
tion of an ordinary action. Nevertheless, even at the present
time, the writ bears very plainly the stamp that was impressed
upon it at its origin. Thus, for example, certiorari does not
issue of course, as does the ordinary summons in an action;
application has to be made to the proper court, and this may
refuse or grant the application for the issue of the writ in its
own discretion.' In the exercise of this discretion the courts
have laid down several rules by which they will be guided.
(I) They will not issue the writ if there is any other adequate
remedy; i.e. certiorari is an extraordinary remedy. Adequate
remedies have been held to exist where it is possible to
obtain a writ of error,2 or to appeal, even to an administrative
1 Duggen vs. McGruder, i Miss. 112; People vs. Mayor, 2 Hill (N. Y.) 9; Matter
of Mount Morris Square, Ibid. 14. See also section 2127 of the New York Code of
Civil Procedure. This section of the code has been construed by the New York
Court of Appeals as providing that the decision of the court withholding or granting
the issue of the writ cannot be reviewed in the Court of Appeals. People vs. Stillwell,
I9 N. Y. 531; People vs. Hill, 53 N. Y. 547; People vs. Commissioners, 82 N. Y. 5o6.
2 Petty vs. Jones, i Iredell L. (N. C.) 408.
502 POLITICAL SCIEKCE QUARTERLY. [VOL. VI.
authority,l or to apply for any statutory remedy.2 The only

important exceptions to this rule are to be found in some cases
where an appeal lay on the merits, and where nevertheless cer-
tiorari was issued to test the question whether the tribunal
whose record was to be brought up had exceeded its jurisdic-
tion ;3 and in certain other cases, especially in North Carolina
and Tennessee, where it is held that if one without fault has
lost the right to appeal, he may get a certiorari if the time for
appeal has gone by.4
(2) The courts have held that they will not issue a certiorari
where the party applying for it is guilty of laches and has slept
upon his rights.5
(3) The courts will not issue a certiorari where substantial
justice has been already done, or where very mischievous con-
sequences will result from its issue, or where the parties cannot
be placed in statu quo by its issue,6 or for a mere defect in
form 7 or of jurisdiction.8
(4) Finally the courts have held that the certiorari may not
be used simply for the purpose of the maintenance of the law.
That is, persons applying to the courts for the issue of the writ
1 Beck vs. Knabb, I Overt. 55, 59, 60; Storm vs. Odell, 2 Wendell (N. Y.)
287; O'Hare vs. Hempstead, 21 Iowa, 33; N. Y. Code, sec. 2122, paragraph 2.
2 Tucker's Petition, 27 N. H. 405; Baldwin vs. Goodyear, 4 Cowen, 536. See
also Harwood vs. French, 4 Cowen, 501.
3 Kingsland vs. Gould, 3 N. J. L. i6i; Krummick vs. Krummick, I4 N. J. L. 39;
Burrows vs. Vandervier, 3 Ohio, 383.
4 Trice vs. Varborough, 4 Iredell L. (N. C.) i I; Kearney vs. Jackson, i Verg.
(Tenn.) 294; Skinner vs. Maxwell, 67 N. C. 257; King vs. Williams, 7 Heiskell
(Tenn.) 303.
6 Ex fiarte Hagaman, 2 Hill (N. Y.) 415; Bannister vs. Allen, I Blackford
(Ind.) 415; Holden vs. Commissioners, 7 Metcalf (Mass.) 561; Elmendorf vs.
Mayor, 25 Wendell, 693; Bentz vs. Detroit, 48 Mich. 544; Carpenter vs. Commis-
sioners, 64 Mich. 474. The time within which the writ may be applied for is some-
times fixed by statute. Thus the N. Y. Code, section 2125, allows four months after
the determination in which to issue and serve a certiorari reviewing the determination.
G Hancock vs. Boston, i Metc. (Mass.) 122; Rutland vs. Worcester, 20 Pick.
(Mass.) 71; Gleason vs. Sloper, 24 Pick. i8i; People vs. Supervisors, 15 Wendell,
I98; People vs. Rochester, 2I Barb. 656.
7 Elmendorf vs. Mayor, 25 Wendell, 693; Monterey vs. Berkshire, 7 Cushing
(Mass.) 394; Smith vs. Commissioners, 42 Me. 395, 402; Criswell vs. Richter,
12 Texas, I8.
8 Fowler vs. Lindsey, 3 Dallas (U. S.) 411, 413.
must show to the satisfaction of the court that they have some
special interest involved which is peculiar to themselves and
that the issue of the writ will result to their advantage.' Thus
the courts have refused the issue of a certiorari to declare a muni-
cipal ordinance void, where the applicant for the writ had been
convicted of its violation and had paid the fine imposed; 2 or
to reverse the action of an authority in laying out a drain,
where the applicant for the writ could show no personal injury
from the action complained of. The simple allegation also that
the applicant was a resident and a taxpayer has been held to be
insufficient to justify the issue of the writ in the absence of
any further special interest.3 Such are the prerogative charac-
teristics of the writ of certiorari at the present time.
III. What Courts may Issue the Writ.
As the certiorari is a writ of an extraordinary character, it is

not every court that is permitted to issue it. It has already
been shown that in England, after the disintegration of the
King's Council and the development of special royal courts, it
was the court of King's Bench that possessed the power to issue
the extraordinary legal remedies or prerogative writs of which
the certio>ari was one. As a result of this fact, the rule in the
United States seems to be that certiorari as a means of appeal
issues only from these courts which have inherited the jurisdic-
tion of the English court of King's Bench. What courts have
inherited this jurisdiction is usually determined by the constitu-
tions or statutes of the separate commonwealths. In New York
the code of civil procedure, section 2123, provides that where no
special exception is made by law, certiorari to review a determi-
nation can issue only out of the Supreme Court or a superior
city court. But while the matter is thus governed largely by
special statute, still two general principles may be laid down:
1 People vs. Leavitt, 41 Mich. 470; People vs. Walter, 68 N. Y. 403; People vs.
Phillipps, 67 N. Y. 582. 2 People vs. Leavitt, 41 Mich. 470.
8 State vs. Lamberton, 37 Minn. 362. See also Granville vs. County Commis
sioners, 97 Mass. 193; Waston vs. May, 6 Ala. 133; Davis Co. vs. Horn, 4 Greene
(Iowa) 94.
(i) Certiorari may not ordinarily be issued by courts of limited

jurisdiction, but only by courts of general common-law jurisdic-
tion, since it is only the latter class of courts that have inherited
the jurisdiction of the court of King's Bench.
(2) The issue of the writ is an exercise of an original j urisdic-
tion; and therefore courts whose jurisdiction is appellate only
cannot, in the absence of statutory provisions, issue the writ to
review a determination. Of course appellate courts do issue the
writ when it is used for the purpose of correcting diminution.
As far as the United States courts are concerned, it may
further be laid down, as a general principle, that they have
not the power to issue certiorari to review a determination.
Several cases have decided that certiorari will not issue from
the Supreme Court except in case of diminution,' or from the
circuit courts except as an auxiliary remedy ;2 while the same
reasons which forbid the higher courts to issue the writ - viz.
the absence of the grant of such jurisdiction in the constitution
or in the judiciary act -would seem to preclude its issue by
the district courts. There seems, however, to be no reason
why the Supreme Court of the District of Columbia should not
have the power to issue the writ of certiorari; for it is well
settled that it has the power to issue the mandamus, and this
latter power is derived from the fact that it has inherited for
the territory of the District of Columbia the jurisdiction of the
King's Bench.3
It should be noted that the McKinley administrative act
gives the circuit courts of the United States power to issue
certiorari to review the determination of the general appraisers
as to rates of duties and classification of articles. The effect
of this will at once be seen, when it is remembered that by this
act suits against the collector of the customs may no longer be
entertained by the United States courts. Where there was
1 In re Kaine, 14 Howard, 103, 131; Exparte Metzger, 5 Howard, 176

vs. Young, 94 U. S. 258, 259; Exparte Vallandigham, I Wallace, 243.
2 Ex park Van Orden, 3 Blatchford, I67. See also Patterson vs. U. S. 2 Wheat
221.
8 See Kendal vs. U. S. 12 Peters, 524.
previously a remedy of right, a w

now only a prerogative remedy which the court may grant or
refuse in its discretion.
IV. Authorities Subject to the Writ.
Certiorari to review a determination was employed from the

outset as a method of appeal from the decisions of authorities
or tribunals not acting in accordance with the common law, - i.e.
created by statute and possessing only a limited jurisdiction.'
The regular method of appealing from the decisions of author-
ities possessed of general common-law jurisdiction was by writ
of error. Among the authorities subject to certiorari were in-
cluded all quasi-public bodies, - e.g. the disciplinary authority in
a profession or the visitors of a foundation, - as this was the only
way by which their proceedings could be kept within the law.2
Originally the justices of the peace were the officers to whom
certiorari was most frequently issued. They formed the most
important class of authorities not acting in accordance with the
common law. Now the justices of the peace had both judicial
and administrative functions to discharge; but these two classes
of functions were not clearly distinguished. Their administrative
functions were treated as judicial, largely because they were
discharged by officers who had come to be recoginized as judges.
In this country, however, justice has been separated from
administration. This separation began in New York with the
establishment of the office of supervisor in I683; and it has
1 Rex vs. Inhabitants in Glamorganshire, i Ld. Raymond, 580; Bacon's Abridg-

ment, art. Certiorari, B.
This rule has been very generally adopted in the United States. Commonwealth
vs. Ellis, i Mass. 464; Ex pare Tarleton, 2 Ala. 35, citing cases; Commonwealth
vs. Low, R. M. Charleton (Ga.) 298; Ruhlman vs. Commissioner, 5 Binney (Pa.) 24;
Phillips vs. Phillips, 8 N. J. L. 122; Trigg vs. Boyce, 4 Hayward (Tenn.) Ioo; Wil-
liams vs. Carman, i Gill & J. i84, 196; Matthews vs. Matthews, 4 Iredell (N. C.)
155; Bridge Co. vs. Magoun, 8 Greenleaf (Me.) 292, 293; Appeal of Commissioners,
57 Pa. St. 452.
2 See a very interesting case, Groenvelt vs. Burwell, I Salkeld, 263, I Ld. Raymond,
580, in which it was held that certiorari lay to review a judgment given by the censors
of the College of Physicians and Surgeons. For a similar case in the United States,
see State vs, Swift, 2 Hill (S. C.) 367.
become so general that almost all administrative work is attended

to, at any rate in first instance, by officers unconnected with the
administration of justice, such as supervisors, assessors, high-
way commissioners, overseers of the poor, selectmen, etc. When
this separation of administration from justice was accomplished,
it was questioned whether the courts could make use of cer-
tiorari to review the acts of the new administrative authorities.
They had indeed always used the writ to review the acts of
persons discharging similar functions; but these persons had
been regarded as judicial officers, while the new authorities
were purely administrative.
The question was not ordinarily stated in the form here indi-
cated. It was generally stated thus: May the courts issue
certiorari to review other than judicial acts? And, following
old traditions, some of our courts early laid down the rule that
they would not issue certiorari to review a ministerial or legis-
lative act, but would confine its use to the review of judicial
acts. This rule seems clear and simple; but it has proved to
be difficult of application. In determining what is and what
is not a "judicial act" it was obviously possible for the courts
to consider either the nature of the act itself or the character
of the authority performing the act. But if they sought to
apply the first of these tests, they were confronted by an
ambiguity in the use of the term "judicial act." This was
often employed as equivalent to "discretionary act "; and, as
we shall see later, it was a rule of the common law that dis-
cretionary acts were sot reviewable on certiorari; so that this
line of distinction seemed wholly unavailable. Accordingly the
courts sometimes fell back on the second test; and refused to
recognize any act as judicial unless it was performed by a court.
But there was still a third possible construction. Starting from
the principle of the separation of governmental powers, the
courts might hold that an act performed by a body not strictly
judicial in character was nevertheless an exercise of judicial
power as distinguished from executive or legislative power, and
therefore a judicial act. It is in fact in this last sense that the
courts seem generally to have used the term "judicial act" in
laying down the above rule.' Here it is obvious that the courts
revert to the attempt to determine the nature of the act itself,
although they seek to do this by an appeal to a new standard,
viz,. the nature of the power exercised. But this attempt brings
new difficulties. It is a simple matter to say whether or not an
act has been performed by an authority which constitutes part
of the judicial branch of the government as actually organized;
but to determine whether the power exercised by a particular
authority in a given case is or is not judicial in its natutre is
anything but a simple matter. It is far from easy to apply the
principle of the separation of powers to existing governmental
institutions. It is very difficult to discover by its aid any clear
line of demarcation between administrative or legislative acts on
the one hand and judicial acts on the other. And it is even
more difficult to obtain any general agreement upon such ques-
tions, for the simple reason that the standard applied is purely
subjective. The separation of governmental powers is not a
statement of what is, but a theory of what ought to be.
The difficulties here indicated have manifested themselves in
almost every concrete case in which the courts have attempted
to apply the rule. The difficulty of reaching a decision and the
confusion of decisions reached have been especially marked in the
matter of the laying out of highways and streets and the building
of sewers. The courts of Alabama, Massachusetts and Michigan
hold that the action of commissioners of highways or of a com-
mon council of a city in laying out highways and streets is judi-
cial in character and may be reviewed on certiorari.2 The courts
of Maine and New Hampshire hold that the same duty, when
performed by selectmen of a town, is not judicial and that their
act may not be quashed on certiorari.3 But the courts of the
latter state further hold that when this act is performed by a
court, e.g. the court of sessions or the county court, it is judi-
1 See Commissioners vs. Kane, 2 Jones L. (N. C.) 288.
2 Commissioners vs. Thompson, I5 Ala. 558; Commonwealth vs. West Boston
Bridge, 13 Pickering, I95; Parks vs. Boston, 8 Pickering, 2I7, 225; Stone vs. Bos-
ton, 2 Metc. 220; People vs. Brighton, 20 Mich. 57.
3 Harlow vs. Pike, 3 Greenleaf (Me.) 438; Robbins vs. Bridgewater, 6 N. H.
524.
508 POLITICAL SCIENCE QUARTERLY. rVOL. VI.
cial in character and therefore may be reviewed.' In New York

the power of the courts to issue the certiorari to highway com-
missioners is doubtful; 2 and the power of the courts to issue
the writ to the common councils of cities to review their acts in
the matters of streets and sewers is denied.3 The New York
rule is thus opposed to that adopted in Massachusetts, and this
opposition is due to the fact that the New York courts could not
bring themselves to regard acts which were plainly of an admin-
istrative character (or, as the courts say, of a quasi-legislative or
ministerial character), as judicial acts. In the case of People
vs. Mayor,4 the judge carries the distinction to quite a length in
saying that while " an ordinance of the common council for the
construction of the sewer . . . was a simple exercise of their minis-
terial, or, if I may use the expression, legislative power," and while
the decision of the council on the question of expediency could
not be reviewed; still " it is competent for us in a proper case to
vacate the estimate and assessment of the common council in
affirming those proceedings, as they then acted in a judicial
capacity." That is, if sewers were built from the proceeds of
bonds or taxation, no matter how illegal or irregular the ordi-
nance ordering the construction was originally, certiorari would
not issue, because the ordinance was not a judicial act; but if
the sewers were to be built from the proceeds of assessments for
local improvements, certiorari would issue to quash the decision
1 Robbins vs. Bridgewater, 6 N. H. 524; Dorchester vs. Wentworth, 31 N. H.

45i. This latter rule, that the action of bodies recognized as courts in laying out
highways is judicial and subject to the writ of certiorari, seems to be the general one.
See Nichols vs. Sutton, 22 Ga. 309; French vs. Barre, 50 Vt. 567; Prigden vs. Ban-
nerman, 8 Jones L. (N. C.) 26; Ex parle District of Pittsburgh, 2 Watts & Sergeant
(Pa.) 320; Thompson vs. Multonomah Co., 2 Oregon, 34.
2 See Lawton vs. Commissioners, 2 Caines Rep. I79; People vs. Covert, I Hill,
674; Fitch vs. Commissioners, 22 Wendell, I32.
8 Thus the New York courts have held that a city ordinance directing the building
of a sewer or the opening or widening of streets is not a judicial act and is therefore
not reviewable on certiorari. People vs. Mayor, 2 Hill, 9; People vs. Mayor, 5 Barb.
43; Matter of Mount Morris Square, 2 Hill, I4. Two of the cases holding this view
(viz. 2 Hill, 9 and 5 Barb.) are not very strong, inasmuch as the certiorari was refused
partly, at any rate, on the ground that the issue of the writ was discretionary with the
court. But in both cases the distinction between judicial and other acts seems to
have influenced the decision.
4 5 Barb. 43.
as to the assessment if it was based upon an illegal ordinance,

since the act of assessment was a judicial act.' In the Matter
of Mount Morris Square,2 which is a particularly interesting
case, Judge Cowen takes somewhat the same position. He
criticises the attempts (particularly in the case of Parks vs.
Boston),3 to classify acts purely legislative or admninistrative in
character under the head of judicial acts, and explains these
attempts as due to the fact that municipal authorities have been
assimilated with the English commissioners of sewers, who (he
says) were regarded as courts.4 He thus seems to adopt the
rule that the character of the act is determined by the character
of the body which performs it. He soon, however, departs
from this standard and adopts the rule that the character of
the act is determined by the character of the power exercised:
for he proceeds to analyze the acts of municipal corporations
and their officers and finds that they consist, in the first
place, of what he calls corporate acts, e.g. the making of by-
laws, voting taxes, appointing officers; in the second place,
of governmental powers, e.g. the power of eminent domain for
streets; in the third place, of really judicial powers, e.g. the
power to assess property. In this last class of cases alone he
believes that certiorari may issue, though he admits, citing Ex
parte Mayor of Albany,5 that it had become the fashion to ask
for certiorari in the other cases as well. He cites the case of
Leroy vs. Mayor 6 as the cause of all the trouble in New York,
since it allowed the writ to issue to the corporation instead of
to the commissioners of assessments. The result of this opinion
and of the determined attempt on the part of Judge Cowen to
prevent any confusion as to what was a judicial act7 was to
keep the law of New York, for a time at least, in line with his
1 See as to this point People vs. Mayor, 9 Barb. 535, 542.

2 2 Hill, 14. 8 8 Pickering, 217.
4 This point has really very little force; for in England, as has been pointed out,
no distinction was originally made between administrative and judicial bodies.
6 23 Wendell, 277. 6 20 Johnson, 430.
7 But even after his explanation, the distinction between judicial and other acts
was not very clear, See Rochester White Lead Co. vs. the City of Rochester, 3 N. Y.
463, 467.
theory - and to give less protection to private rights than the

Massachusetts rule afforded.1 Thus in the case of People vs.
The Board of Health,2 the judge bases his decision upon this
general rule, that the act must be judicial in character, saying:
I cannot adopt the conclusion that it is in any sense proper to review

the legislation of any body having authority so to do, even where in the
course of such legislation they might exceed the powers vested in them.
This New York rule seems to have gained a foothold in Ohio.3

Such is the result of the attempt to apply to actual practice
the rule that certiorari will issue only in case the act to be
reviewed is a judicial act. In the concrete case of highways
and the like, the Massachusetts rule differs from the New York
rule and, while it affords fuller protection to private rights, is less
logical; and in New Hampshire the whole question is made to
turn on the character of the body performing the act. If per-
formed by the selectmen, the act is not judicial and may not be
reviewed; if performed by a court of sessions, a well-recognized
judicial body, the same act is metamorphosed into a judicial act
and may be reViewed on certiorari.
The rule is therefore practically unsatisfactory, - a fact
which ha.s been recognized by the courts of several common-
wealths, but first and most clearly by those of New Jersey.
The New Jersey courts have wholly rejected it, and have
taken the ground that ordinances passed by a city council may
be reviewed on certiorari, not because they are judicial acts, but
because of the general principle that the courts have power on
certiorari to remedy wrongs inflicted upon individuals whether
by corporate acts or by the acts of special jurisdictions created
by statute.4 In the case of Camden vs. Mulford the judge who
delivers the opinion of the court says that, before the attack of
Judge Cowen already spoken of, evidence of the belief in the
existence of this general principle is to be found in some of
the New York cases. And it is to be noted that in some of
the earlier cases cited later in this article -particularly in the
1 Cf Dillon, Municipal Corporations (4th ed.), II, 1126, notes.

2 20 How. Pr. 458, 460. 3 Dixon vs. Cincinnati, 14 Ohio, 240.
4 State vs. New Brunswick, Coxe (N. J.) 393; Camden vs. Mulford, 26 N. J. L. 49.
Cardiff Bridge case -the English judges seem to have been

of the same opinion. The only objection to the New Jersey
rule would seem to be found in the old distinction between void
and voidable acts. It is claimed that certiorari is unnecessary
in the case of a void act, because such an act may be impeached
collaterally; that all acts not judicial, when done in excess of
jurisdiction, are void; and therefore that certiorari should not
issue to declare them so. From the standpoint of legal logic it
may be answered that a judicial declaration of the original nullity
of an act is not the same thing as the impeachment of a void-
able act, and that certiorari may be used for the former purpose
without transforming the act reviewed into a voidable act. As
far as historical precedent is concerned, this distinction, as I
shall point out later, really never had any great influence upon
the issue of the writ in England nor, it may be added, in this
country, notwithstanding several dicta to the contrary. As a
matter of policy, this distinction is objectionable, because its
application would deprive individual rights of a most precious
means of protection in a class of cases which is increasing in
number with the more complete separation of administration
from justice.
The New Jersey rule has been practically adopted in several
other commonwealths - though sometimes, apparently, without
full consciousness of the fact on the part of the courts. Thus
in Maryland it has been held that certiorari will issue to review
the action of the mayor and common council of a city in
improving the streets; but no reason is given for the decision
except the general power of the courts to quash illegal action
on certiorari.1 In Illinois a certiorari issued to review the
action of highway commissioners on the broad principle again
that " certiorari may issue for the purpose of reviewing the pro-
ceedings of all inferior tribunals and jurisdictions where they
exceed their power or proceed without authority of law." 2 The
same doctrine seems to be held in Missouri 3 and in a late case
I Swann vs. Mayor, 8 Gill, I50.

2 Detrick vs. Highway Commissioners, 6 Bradwell, Ill. Appeals, 70.
3 St. Charles vs. Rogers, 49 MO. 530.
in Maine.' The United States Supreme Court has either held

or intimated that certiorari is the proper remedy in these cases,
though here again no reasons are given.2 In Wisconsin certiorari
has issued to test the validity of the proceedings of a common
council in laying out streets,3 and was said to be the proper
remedy to review the revocation of a license by a council.4 In
one Wisconsin case the court was confronted with an awkward
alternative. It was called upon to determine whether the deci-
sion of the superintendent of public instruction concerning the
division of a school district could be reviewed upon certiorari.
If the court held that the act of the superintendent was not
judicial, it felt obliged to decide that certiorari could not issue.
If on the other hand it held that his act was judicial, it would
strip him of a series of most valuable powers; since the ccnsti-
tution declared that none but judicial officers should exercise
judicial powers, and the superintendent was evidently not a
judicial officer in the sense of the constitution. The court,
however, was equal to the occasion and succeeded in avoiding
both horns of the dilemma. It declared that the act in ques-
tion, while not absolutely and purely judicial in the sense of the
constitution, was yet quasi-judicial -judicial enough to permit
the issue of the writ to the superintendent in a proper case.
What was really meant by the opinion was that the act of the
superintendent, from the point of view of the principle of the
separation of governmental powers, was an administrative act of
a discretionary character.5 A very late case6 in New York,
finally, has accepted the Wisconsin point of view, practically
reversing the case of People vs. Board of Health,7 cited above.
The court holds, though without citation of authorities, that an
order of a board of health may be quashed on certiorari, because
the duties discharged by boards of health are quasi-judicial.
1 Preble vs. Portland, 45 Maine, 24I.

2 Ewing vs. City of St. Louis, 5 Wallace, 413.
8 Flint vs. Fond du Lac, 42 Wis. 287.
4 Gaertner vs. Fond du Lac, 34 Wis. 496.
5 State vs. Whitford, 54 Wis. I50. Same principle: State vs. Dodge Co., 56
Wis. 79.
6 People vs. Board of Health, I2 N. Y., Supplement, 56i. 7-20 How. Pr. 458.
No. 3.] THE WRIT OF CERTIORARL. 513
In view of the above decisions we may safely say, notwith-

standing the difficulty experienced by the courts of some of
our commonwealths in reaching a satisfactory solution of the
question, that the use of the certiorari is not confined to the
review of judicial acts; that the writ is applicable in numerous
cases where private rights are prejudiced by administrative
decisions; and that it furnishes the chief means of subjecting
the acts of a host of administrative authorities to the control of
the courts. In detail it has been held that certiorari lies to
justices of the peace,' supervisors,2 county commissioners,3
commissioners to assess damages,4 assessors," commissioners of
highways in many cases,6 and municipal councils and depart-
ments.7
Not only may certiorari be employed to review administrative
decisions, but there is a tendency to limit its use to such cases.
At common law certiorari was used to review the decisions of
bodies exercising real judicial powers, i.e. bodies which decide
controversies ; 8 but at the present time in the United States
the tendency is to provide some other means of appeal against
the action of purely judicial bodies and to confine certiorari -
i.e. certiorari to review a determination - to the action of bodies
mainly administrative in character. Thus the New York codes
of civil and criminal procedure abolish certiorari to review a de-
termination in a civil or criminal action by a judge or a court of
1 Rex vs. Inhabitants of Glamorganshire, I Ld. Raymond, 580; Little vs.

Cochran, 24 Me. 509.
2 People vs. Supervisors, 5i N. Y. 442.
8 Bangor vs. County Commissioners, 30 Me. 270; Gibbs vs. Hampden, I9 Pick-
ering, 298.
i Ex Eparte N. J. R.R. Co., i6 N. J. L. 393.
r People vs. Assessors of Albany, 40 N. Y. 154.
6 Commonwealth vs. Coombs, 2 Mass. 489; Lawton vs. Commissioners, 2 Caines
(N. Y.) 179.
7 Stone vs. Boston, 2 Metc. 220; Camden vs. Mulford, 26 N. J. L. 49; People
vs. Mayor, &c., 9 Barb. 535; People vs. Rochester, 2I Barb. 656 (this case shows
a tendency to depart from the original New York rule); Whitney vs. Board of Dele-
gates, I4 Cal. 479.
8 E.g. see Bacon's Abridgment, title Certiorari, B. Reardon vs. Guy, 2 Hayward
(N. C.) 433; John, a Slave vs. The State, I Ala. 95; Ex parte Couch, 14 Ark.
337-
record, and provide for an appeal.' In New York, accordingly,

certiorari to review a determination has been specialized into a
means of appeal against the action of administrative officers-
the very purpose for which the courts at first refused to em-
ploy it.
Nevertheless, the writ cannot be used against all officers of
the administration. It may not be employed to review the
decision of a mere ministerial officer 2 nor the acts of the chief
executive of the nation or of a commonwealth.3
V. Province of the WYrit.
The change above outlined in the use of the writ has carried
with it a change in its purpose or province. In order to under-
stand the province of the certiorari to review a determination, it
is necessary to bear in mind the rules of the English law regard-
ing appellate proceedings in general; and first of all the distinc-
tion between appellate proceedings at law and in equity. Equita-
ble appellate proceedings, such as "appeals " technically so called
and " review," brought up before the appellate court the whole
matter in controversy, including questions both of law and of
fact, to be tried anew as if the case had never been tried before.
Appellate proceedings in law, as distinguished from equity, con-
sisted of the writs of error and certiorari, and brought up for
review only questions of law. Among the questions of law
upon which appeal might be taken was the question as to the
existence in the proceedings of those facts which the law
requires to exist in every case in order that there may be no
error in law; such, for example, as the fact that the defendant
in the suit had been served with process.4 The historic basis of
this distinction between appellate proceedings at law and in
equity is probably to be founid in the fact that, at the time when
the jurisdiction of the royal law courts was developed, the influ-
1 N. Y. Code of Civil Procedure, sec. 2121; N. Y. Code of Criminal Procedlure,

sec. 5I5. See also, on the general principle, Baylies' New Trials and Appeals, p. 17.
2 People vs. Walter, 68 N. Y. 403, 410.
3 People vs. Hill, I3 N. Y. Supplement, I86; Law _7ournal, April I3,

affirmed by the Court of Appeals but not yet reportel.
4 Powell, Appellate Proceedings, pp. 44 seq.
No. 3-] THE WRIT OF CERTIORARI. 515
ence of the popular courts was stronger than at the time of the
development of the court of Chancery. In the popular courts
questions of law and of fact were both decided by the people.
With the development of the royal law courts, the decision of
questions of law fell into the hands of the judges, but the
decision of questions of fact was left with the representatives of
the people, or, later, the jurors. But when the court of Chan-
cery was formed, the balance of influence had so far shifted from
people to King that the King was able to invest the Chancery
judges with power to decide all questions, whether of law or of
fact. Appeals in both cases naturally brought up only those
questions which had been decided by the judges from whose
decision the appeal was taken: in the one case, only questions
of law; in the other, questions both of law and of fact. Certi-
orari and error were therefore from the beginning means of
appealing upon questions of law alone.
The great difference between the writ of certiorari and the
writ of error was that the writ of error was issued to tribunals
having full common-law jurisdiction, courts which decided con-
troversies; while certiorari was issued to tribunals not acting
in accordance with the common law, i.e. tribunals of limited
jurisdiction - jurisdiction granted by statute and largely admin-
istrative in character.' This fact had great influence on the
original province of the writ of certiorari to review a determina-
tion. The most important authorities to whom the writ was
originally issued (viz. the justices of the peace) did not so much
decide controversies as administer government. Their most
important duties, the exercise of which the court of King's
Bench was most frequently called upon to review on certiorari,
consisted in deciding questions of fact and expediency. Unlike
the courts of general common-law jurisdiction, they had not to
establish and develop the rules of the substantive law; they had
simply to apply the established rules to what they found to be
the facts of each case. Of course the application of legal rules
involves their interpretation, and, equally of course, it was
possible for these courts to misinterpret the substantive law;
1 See supra, P. 505.
516 POLITICAL SCIENCE QUARTERLY [VOL. VI.
but the main questions of law which they determined (and had
to determine in order to act at all) concerned their competence,
and their most frequent errors on points of law consisted in
overstepping their competence, i.e. in excess of jurisdiction.
Now in the theory of the English law the decision of a court of
limited jurisdiction in excess of jurisdiction is absolutely void.
In pure theory, therefore, there was no need of providing any
means of appeal from such decisions in excess of jurisdiction;
since they were void, they could always be impugned collater-
ally. In practice, however, it was clearly inconvenient to have
the validity of a decision tested in this way. Not only would
it be unfair to give to the individual no remedy except the right
to refuse to obey the void order or decision and, on prosecution,
to allege collaterally its illegality and invalidity,' but it would
take up altogether too much of the time of the ordinary courts
to oblige them to examine, whenever the claim of invalidity
might be raised collaterally, whether all the provisions of the
law giving jurisdiction had been complied with. Accordingly
we find that from an early period the acts of the most important
of these authorities of limited jurisdiction, not proceeding in
accordance with the common law (viz. the justices of the peace),
were treated collaterally in much the same way as the acts of the
ordinary courts of common law and general jurisdiction. Thus,
in the case of Rex vs. Venable 2 the court said: " We will not
presume that they acted unlawfully." But if the collateral
attack was refused, a means of direct attack must be furnished.
Therefore from an early time the certiorari was made use of to
quash an act that was admittedly void. The most instructive of
the early cases on this point are those of Rex vs. Inhabitants of
Glamorganshire,3 known as the Cardiff Bridge case, and Groen-
welt vs. Burwell.4 In the first the question was as to the pro-
priety of the issue of the certiorari to justices of the peace to
1 Cf Justinian's Codex, 2, 40, 5, I: Melius . . . est intacta jura . . . servari

quam post causam vulneratam remedium quaerere.
2 I Strange, 630. See also Rex vs. Cleg, I Strange, 475, and note to 7 T. R. 633,
where it was held that a conviction by a justice could not be impeached collaterally
any more than the judgment of a court of general jurisdiction. Cf Freeman, Judg-
ments (3d ed.), secs. I22, 520. 3 I Ld. Raymond, 580. 4 Ibid. 454, 46
No. 3.] THE WRIT OF CERTIORARI. 5I 7
quash, for excess of jurisdiction, their action in ordering money

to be levied for the repair of Cardiff bridge. Objection was made
to the issue of the writ on the ground that it was not necessary;
since if the justices had proceeded according to the statute
there was no reason to remove their order into the royal court,
but if not, then what they did was coram non judice and void and
parties might examine the legality of the proceedings collater-
ally in an action. But the court held that it would examine the
proceedings of all jurisdictions erected by act of Parliament;
and if under pretence of such an act they proceeded to encroach
jurisdiction to themselves greater than the act warranted, the
court would send a certiorari to them to have their proceedings
returned there, to the end that the court might see that they
kept themselves within their jurisdiction and if they exceeded
it to restrain them. In Groenwelt vs. Burwell it was said that
by common law the court would examine by certiorari if other
courts proceeding not in accordance with the common law
exceeded their jurisdiction.1 Thus, notwithstanding the general
theory concerning void acts, the decision of the question of
jurisdiction was originally the province of the writ of certiorari
to review a determination; and the fact that the act to be
reviewed was void was no bar to the issue of the writ. This
rule seems to have been adopted in this country. Judge Savage
of New York said: "There are many cases in our reports of
justices' judgments reversed where they were utterly void." 2
Again, in Fitch vs. Commissioners,3 the court said that the fact
that an order is void does not preclude the party from treating
it as voidable4 and bringing certiorari to quash it.r
1 See also Rex vs. Morley, 2 Burrows, I040, where it is said that " a certiorari
goes to see whether a limited jurisdiction have exceeded their bounds."
2 Starr vs. Rochester, 6 Wendell, 564, 567. 8 22 Wendell, 132, 135.
4 The reasoning here is confused. The law may, and in fact every system of law
does, provide in certain cases for a judicial declaration that a void act is void. This
is the purpose of the French action en nulliti and of the German Nichtigkeitsklage.
The English law has inherited from the canon law a similar procedure in the case of a
marriage void ab initio. The fact that a distinct form of procedure is provided to test
the question of nullity does not turn the void act into a voidable act; and in such
cases it is inexact and confusing to say even that the void act is " treated as voidable."
6 See Stone vs. Mayor, etc., 25 Wendell, 157, I68, with cases cited; Swann vs.
Jurisdiction depends, however, according to the courts, upon

the existence of two classes of facts. In the first place the law
must have given the power to act in the case. In the second
place the formalities laid down by the law must have been fol-
lowed by the authority doing the act; and even if the law does
not expressly indicate the formalities to be complied with, still
the courts have always insisted upon the doing of certain things
in order that the legal proceedings may be regarded as valid.
In other words the proceedings must be regular, in order that
an authority may be said to have acted within its jurisdiction.
The question of regularity of proceedings is thus made a part of
the general question of jurisdiction. Still, many of the decis-
ions, among which may be mentioned not a few of those above
cited,' treat this latter question as a distinct one, and state that
certiorari brings up not only the question of jurisdiction, but
also that of the regularity of the proceedings.2 But this was all
that the certiorari originally brought up for review. Case after
case may be cited to indicate how unwilling the courts were to
allow any other questions than those pertaining to the matter of
jurisdiction to come up before them on certiorari. They refused
for a long time to consider errors upon points of law except
where these affected the question of jurisdiction.3 They have
time and time again refused to look beyond the record; 4 they
have decided that, when the case brought up turned upon the
decision of a question of fact, they would not interfere,5 - would
Mayor, 8 Gill (Md.) 150; Doolittle vs. R. R. Co. I4 Ill. 38I; People vs. Williamson,
I3 Ill. 660; R. R. Co. vs. Whipple, 22 Ill. I05; Jeffers vs. Brookfield, i N. J. L. 38,
and Ex parte Buckner et al., 9 Ark. 73. In both these last cases the court speaks
expressly of quashing void acts.
1 See particularly Brooklyn vs. Patchen, 8 Wendell, 47; Swan vs. Mayor, 8 Gill
(Md.) 150.
2 The most common irregularity seems to be failure to give proper notice. This,
the courts hold, is sufficient cause to quash the action of administrative authorities on
the ground of common right. Fonda vs. Canal Appraisers, i Wendell, 288; 15 John-
son, 537; Commissioners vs. Chase, 2 Mass. 270; Commissioners vs. Peters, 3 Mass.
229; State vs. Barnes, 8 Me. 135, 137; Ottawa vs. R. R. Co., 25 111. 43.
3 King vs. Whitbread, 2 Douglas, 549,553, 555; Birdsall vs. Phillips, I17 Wendel
4 Wood vs. Tallmann, I N. J. L. I53; Starr vs. Rochester, 6 Wendell, 564, 566;
Farley vs. McIntire, I3 N. J. L. I90; Andrews vs. Andrews, I4 N. J. L. I41.
5 State vs. Senft, 2 Hill (S. C.) 367, 369.
No. 3.] THE WRIT OF CERTIORARI. 5I9
not inquire whether a verdict or decision was against evidence,'

nor consider the credibility of witnesses.2 On this account the
return to the writ when issued did not bring up the evidence as
a part of the record.3 The only clear exception to this limita-
tion of the province of the writ was to be found in the case of
summary convictions before justices, where the courts held that
errors of law other than those on the question of jurisdiction
were reviewable; that the question of fact, whether the convic-
tion was supported by the evidence, might be examined; and
that, in case the courts of review found that the conviction was
totally unsupported by the evidence, they might quash it.4 The
reason of this exception is to be found in the necessity of estab-
lishing an effective control by officers of a really judicial charac-
ter in cases involving individual liberty. The justices, as we
have seen, were administrative rather than judicial officers;
and in these cases of summary convictions the justices acted
without a jury and in a manner which was at variance with the
usual rules of the English criminal law relative to convictions.
In these cases of summary conviction, where the province of
certiorari was wider than in other cases, - where it served
to review both the law applied and the evidence adduced, -
the usual rule was to send up to the court of review the evi-
dence as well as the record.
Further, there are a few English cases which apply the same
rule to facts affecting the jurisdiction. A series of cases have
held that the action of justices who were in the slightest degree
interested might be quashed on certiorari. In fact one of the
fundamental rules in regard to jurisdiction has always been that
aliqitis non debet esse judex in propria sua causa.5 In some of
these cases the interest which forfeited jurisdiction had to be
1 Nightingale, petitioner, xi Pickering, i68; Baldwin vs. Simmons, 9 N. J. L.
I96.
2 Independence vs. Bompton, 9 N. J. L. 209.
3 Canal Co. vs. Keiser, I9 Pa. St. I34.
4 King vs. Smith, 8 T. R. 588; Rex vs. Killett, 4 Burrows, 2063; Rex vs. Vipont,
2 Burrows, II65; Rex vs. Theed, 2 Strange, 9g9; People vs. Miller, 14 John
371.
5 See, e.g., In re Hopkins, E. B. & E. xoo; Regina vs. Allen, L. R. I Q. B.

120.
proved delhors the record. Thus a conviction for violation of

the by-law of a railway company was quashed because some of
the justices were shareholders in the company.'
The tendency in this country to separate the administration
of justice from the administration of government has resulted
in making the justices of the peace almost exclusively judicial
officers. Their original judicial powers, which were mainly of
a criminal character, have been increased by statutes which
have given them quite an extensive jurisdiction in minor civil
cases. But as they retained the character of courts of limited
jurisdiction, not proceeding according to the common law, their
acts were reviewed not by writ of error but by certiorari; and
as the questions which could be reviewed on certiorari were, as
has been shown, simply the questions of jurisdiction and regu-
larity of proceedings, their mistakes of law in civil suits could
not be corrected without extending the province of the certiorari
and making it as liberal as the writ of error.2 Such an exten-
sion of the province of the writ accordingly appeared in these
civil cases. It seems to have gone hand in hand with the
extension of the civil jurisdiction of the justices, and to have
been accomplished by the courts almost unconsciously. Thus
a judgment of justices of the peace in a civil case in Maine was
quashed on certiorari because the justices had not required the
debtor to make a full discharge of his property as required by
law.3 Here the ground of the quashing of the judgment, as
stated by the court, was that after refusing the just demand
of the creditor the justices' subsequent action was not warranted
by law and they therefore had not jurisdiction. In another case
the judgment of the justices was quashed on certiorari because
they had refused to allow the creditor to make an examination
of a debtor which the law permitted.4 In- spite of some conflict
1 Regina vs. Allen, L. R. I Q. B. 120. See also People vs. Goodwin, 9 N. Y.

568; People vs. Wheeler, 2 N. Y. 82.
2 The province of the writ of error was enlarged in the time of Edward I.
8 Dow et al. vs. True et al., I9 Me. 46.
4 Little vs. Cochran, 24 Me. 509. See also on this point State vs. Stuart, 6 Stroh-
bart L. (S. C.) 29; Hayward, petitioner, io Pickering, 358; Buckmesser vs. Dubs, 5
Binney (Pa.) 29.
No. 3.] THE WRIT OF CERTIORARI. 52 1
in the decisions,' the same rule has been established in New

York. It has been decided that, in purely civil cases- i.e. in
controversies between individuals in regard to purely private
rights - the court of review may on certiorari quash the action
of the lower tribunal, not only where it has exceeded its juris-
diction or where its proceedings have been irregular, but also
where it has made a mistake in the application of principles of
law to the particular case; and that, in order to enable the
court of review to do this, the lower court must on the return
to the writ send up whatever evidence is necessary to enable
the higher court to reach its decision. These principles may
be regarded as settled by the case of Morewood vs. Hollister,2
decided in 1852, in which all the other cases were reviewed and
the doctrine as stated -viz. that the court of review may quash
the act of the lower court for error in law - was fully and
unqualifiedly adopted. But the case of Morewood vs. Hollister
went a step farther. It decided to apply in these cases the rule
which had from time immemorial been applied to cases of sum-
mary convictions; viz. that the court of review might quash
the decision of the lower tribunal if this decision appeared to be
absolutely unsupported by the evidence. In the case at bar it
decided, on the evidence which it permitted to be sent up, that
the lower court had erred in deciding " that the insolvent had
in all things conformed to the matters required of him by stat-
ute and that he should be discharged from his debts."
Up to the time when this case was decided (1852) we find few
if any decisions enlarging the province of the writ when applied
to the decisions of administrative as distinguished from judicial
authorities. One case, indeed, had claimed for the court of
review the right of quashing the decisions of administrative
authorities for errors of law. This was the case of Baldwin vs.
Calkins,3 in which the court quashed the act of assessment com-
1 Matter of Wrigley, 4 Wendell, 602, and 8 Wendell, I34; Anderson vs. Prindle, 23
Wendell, 6I6. See also Roach vs. Cosine, 9 Wendell, 227; Brown vs. Betts, I3
Wendell, 29 (which permitted the introduction of evidence and discussed its weight);
Brooklyn vs. Patchen, 8 Wendell, 47. But see Simpson vs. Rhinelander, 20 Wen-
dell, 103 which held to the old view.
2 6 N. Y. 309. 3 io Wendell, I67.
missioners on the ground that in assessing damages they had

made use of a wrong principle of law. But in People vs. Good-
win,' the contrary view was taken. It was said that
where the authority and jurisdiction depends upon a fact to be proved

and such fact is disputed, the magistrate must certify the
proofs given in relation to it for the purpose of enabling the higher
court to determine whether the fact be established. The decision of
the magistrate in relation to all other facts is final and conclusive and
will not be reviewed on a common law certiorari. But the main object
of this writ being to confine the action of inferior officers witlhin the lim-
its of these delegated powers, the reviewing court mnust necessarily re-
examine, if required, the decision of the magistrate on all questions on
which his jurisdiction depends, whether of law or of fact.
The disputed jurisdictional fact in this case was whether the

owner of a building situated on land through which a road was
to run had given his consent to the laying out of the road as
fixed by the commissioners, the consent being necessary to the
jurisdiction of the commissioners. While the statement of the
principle in this case is quite narrow, it will be noticed that
the decision itself is quite in line with the decisions discussed in
the preceding paragraph. A similar case is People vs. Van Al-
styne,2 where facts in regard to jurisdiction were permitted to
be brought up on certiorari. The more liberal principle, how-
ever, was not yet established, as may be seen from the next
case in point, viz. People vs. Wheeler.3 This held that the
main inquiry on certiorari relates to the power and jurisdiction of the

inferior tribunal, and the question can only be determined by matters
appearing in the record. When an examination into collateral facts,
not properly appearing in the record, is desired, to shiow want of power
or jurisdiction, the appropriate remedy is not by certiorari.
In this case the attempt was made to show dehtors the record
that the officer whose decision was attacked was the brother
of one of the parties concerned in the proceeding. This the
court refused to allow, notwithstanding that it was claimed that
proof of the relationship, if admissible, would have an important
bearing on the question of jurisdiction. This claim was not
1 5 N. Y. 568. 2 32 Barb I3T. 3 2I N. Y. 82.
fully admitted by the court. The next case is still stronger in

favor of the narrow rule. This is the case of People vs. High-
way Commissioners,' in which the court says distinctly that the
office of certiorari
is merely to bring up the record of the proceeding to enable the Su-

preme Court to determine whether the inferior tribunal has proceeded
within its jurisdiction and not to correct mere errors in the course of the
proceeding. Here the object seems to bring into review the alleged
erroneous rulings of the jury in receiving or rejecting evidence offered
on the hearing before them, as though it were a bill of exceptions.
Such questions do not arise and cannot be reviewed on certiorari.
The opinion is based on the case of Birdsall vs. Phillips 2 which

was one of the narrowest of the old cases and had been reversed
so far as the purely civil cases were concerned.
But the application of the broader rule to the decisions of
judicial bodies could not fail to have an influence upon the
courts in their review of the decisions of administrative author-
ities. The first case, however, which comes out definitely for
the application of the same rule to administrative decisions is
Swift vs. Poughkeepsie,3 which contains, in a dictum, a dis-
tinctly liberal statement of the province of the writ. This was
an action against a city to recover taxes paid, on the ground
that the assessment was erroneous. The court held that the
action did not lie. The acts of the assessors could not thus be
impeached collaterally. The plaintiff, it was said, should have
availed himself of his remedy by certiorari to declare the assess-
ment void. The judge says:
The plaintiff denies the efficiency of this remedy upon the ground
that upon a certiorari the court will only consider the question of juris-
diction, and that in this case if the court found, as it would upon the
doctrine now proclaimed, that the assessors had jurisdiction, their
determination as to the legality of the taxes could not have been
reviewed. It is true that this has been the doctrine of the courts to a
considerable extent, upon what ground, either of principle or of neces-
sity, I never could very clearly comprehend. But I think, at this time
a more liberal rule would and should be applied; and that a certiorari
1 3o N. Y. 72. 2 I7 Wendell, 464. 3 37 N. Y. 5i Y.
would not bring the naked question of jurisdiction, but the evidence on
which the body acted to which the writ was directed as well as the
ground or principle of their action, and thus present the whole case for
review and if necessary for correction.'
While such expressions of opinion as this have not the author-

ity of decided cases, still they show the leaning of the courts;
and shortly afterwards we find a case which definitely applies
to the decisions of administrative bodies the same rule which
had been worked out previously with so great trouble and
through so much conflict for the decisions of purely judicial
bodies. This was the case of People vs. Board of Police,2 which
decided that the court might review the decision of a board of
police dismissing a policeman from office, and might reverse
the decision if it was, in the opinion of the court, absolutely
unsupported by the evidence. Judge Woodruff says:
I cannot resist the belief that a disposition has been manifested to

limit the office of this most useful writ within too narrow limits. Let
it once be established that where an officer or board of officers have
jurisdiction of the subject or of the persons to be affected and proceed
in its exercise according to the prescribed mode or forms, their deter-
mination is final and beyond the reach of any review, whatever errors
in law they may commit and however clear it may be upon undisputed
facts that their judgment, decision or order is not warranted - and
there is danger that much injustice and wrong may happen without
possibility of redress. . . . It may be desirable not to multiply cases
in which appellate courts can be called upon to interfere in matters of
small importance, but that furnishes no reason for denying the power to
see that the rules of law are not violated, when wrong is done, and
no great public inconvenience will result from its exercise. I conclude
. . .that on this appeal this court have power to examine the case
upon the whole of the evidence to see whether, as a matter of law, there
was any proof which would warrant a conviction. . . . If there was no
evidence . . . if the case were such at the close of the trial that it would
have been erroneous to submit the question to a jury, were a like ques-
tion before a jury in an ordinary action - then the error is an error of
1 See also, to the same effect, Baldwin vs. Buffalo, 35 N. Y. 380, which makes the
same intimation and which is approved in the case just cited. The case of Baldwin
vs. Buffalo also intimated that if the evidence returned showed that the decision of
the lower tribunal was incorrect, i.e. was absolutely unsupported by the evidence,
that the higher court could correct it. 2 39 N. Y. 5o6.
law, and the conviction is illegal; it rests upon no finding of facts upon
evidence tending to sustain such finding; but as matter of law the
relator was entitled to be acquitted of the charge [page 517].
This liberal rule was followed in the case of People vs. Asses-
sors,1 and in People vs. Smith,2 decided in i871. In this last
case Judge Grover says:
Whatever may have been the conflict of authority upon the question
whether, upon a common-law certiorari, the court can inquire into any-
thing beyond the jurisdiction of the tribunal over the parties and subject
matter, it must now be regarded as settled in this state, that it is the
duty of the court in addition thereto to examine the evidence and deter-
mine whether there was competent proof of facts necessary to authorize
the adjudication made, and whether in making it any rule of law affecting
the rights of the parties has been violated [page 776].
Such is the history of the development of the office of the

writ of certiorari, as taken particularly from the cases decided
by the courts of New York. It may well be asked why the
courts so long distinguished between the province of the writ
as a means of reviewing the decisions of purely judicial bodies
and its province as a means of reviewing the decisions of admin-
istrative bodies, and why the courts enlarged the province of
the writ in the one case without enlarging it in the other. The
answer is that the ordinary civil jurisdiction given to tribunals
not acting in accordance with the common law, i.e. to courts of
limited jurisdiction, was given as a result of the separation of
judicial from administrative functions; that the writ of certio-
rari had always been chiefly used in administrative cases, since
administrative cases formed the majority of the cases which
were decided by these courts of limited jurisdiction; that with
the transfer to them of more purely judicial duties the need was
felt of reviewing their decisions on such matters, and a method
of appeal had to be provided which should accomplish the same
results as the writ of error in judicial cases, and the certiorari
in the case of summary convictions. Finally, in most of the
cases in which judicial duties were conferred upon these courts
I40N. Y. 154. 245 N. Y. 772.
of limited jurisdiction, the statutes granting the jurisdiction

provided expressly for an appeal from their decisions by certio-
rari; and the wording of the statutes was such that the courts
felt justified in applying to this " statutory certiorari," as they
called it, rules more liberal than those which had been estab-
lished touching the common-law certiorari. This comes out
quite clearly in the case of Morewood vs. Hollister.' The stat-
ute granting the certiorari in this instance provided for a review
of the " proceedings." This word the court interpreted to mean
"all matters connected with or attending the exercise of the
power which are necessary to enable the court of review to de-
termine its validity or correctness." The more liberal rule
once established with regard to this statutory certiorari, it was
an easy matter to liberalize the office of the common-law certio-
rari. And fortunate it was for individual rights that this means
of development was offered to the courts before the certiorari
was confined, as it is now coming to be, to the review of the
decisions of purely administrative tribunals. For we are justi-
fied in concluding, from the difficulty which the courts found
in enlarging the province of the common-law certiorari even
with the aid of the statutory certiorari, that without it the cer-
tiorari would have remained, in New York at any rate, as nar-
row a remedy as it was under the common law.
While New York had thus the greatest difficulty in enlarging
the province of the writ, New Jersey, it would seem, took a
much more liberal view of its use from the beginning. As
early as 1839 we find the New Jersey courts holding that the
proceedings of administrative bodies might be quashed on cer-
tiorari for an erroneous application of principles of law.2
The broader rule as to the province of the certiorari, which
had been so laboriously evolved by the New York courts and
which offered to individual rights so important protection against
the arbitrary action of the administration, the people of New
York decided to sanction by statute; in order, in the words of
Mr. Throop,3 " to prevent the possibility of re-opening the ques-
1 6 N. Y. 309. 2 N. J. R. R. Co. vs. Suydam, 2 Harrison, 25.

3 In his note to sec. 2140 of the New York Code of Civil Procedure.
tions thus decided,1 and to declare definitely that the cases hold-
ing the other way were obsolete." Section 2140 of the code,
which is simply declaratory of the New York common law as
then understood, provides that in addition to the questions of
jurisdiction, regularity of proceedings and errors of law, the
court may decide whether there was any competent proof of all
facts necessary to be proved in order to authorize the making
of the determination; and, if there was such proof, whether
there is upon all the evidence such a preponderance of proof
against the existence of any of the facts that the verdict of a
jury in affirmation thereof, rendered in an action in the Supreme
Court triable by jury, would be set aside by the court as against
the weight of evidence. The meaning of this section is shown
to be identical with the common-law rule adopted before the
passage of this section, by the cases of People ex ref. Hogan vs.
French,2 and People ex rel. McAleer vs. French,3 which hold that
the Supreme Court may reverse the decision of the subordinate
tribunal only where it is absolutely unsupported by proof. If
there is any proof at all to support the decision it will be upheld,
as the court will not determine the preponderance of proof.
The New York rule as to the province of certiorari has
been adopted in Michigan in People vs. Jackson.4 Judge
Cooley, who rendered the opinion of the court, seems to think
that in permitting errors of law outside of jurisdictional ques-
tions to be reviewed on certiorari the court is not extending at
all the province of the writ of certiorari at common law. He
regards the early rule in New York, in accordance with which
only the record was returned and only jurisdictional questions
considered, as not supported by the early English cases; and in
order to show that evidence dehors the record might originally
be returned he cites a series of cases. Most of these on exami-
nation turn out to be cases in which summary convictions were
being examined; and it will be remembered that in these cases
1 I.e. by People vs. Smith, 45 N. Y. 772, the last case on the point before the pas-
sage of this section.
2 II9 N. Y. 493. 8 II9 N. Y. 502.
4 9 Mich. III, followed in Hyde vs. Nelson, II Mich. 353, 357.
the New York practice was to require the return of the evi-
dence and to quash the conviction if not supported by the
evidence. The only cases cited by Judge Cooley which do not
relate to summary convictions and which are in point simply
prove that on certiorari jurisdictional facts should be returned
and considered - which was the rule in New York, as is shown
by the case of People vs. Goodwin.' That in England the pur-
pose of the certiorari was not to correct mistakes of law may be
seen from the decision in the case of King vs. Justices,2 where
the court held the contrary view and where Lord Tenterden
said:
The late decisions establish, however, that we cannot assume to our-

selves the jurisdiction of a court of error and revise the judgments of the
court of Quarter Sessions. . . . Assuming the judgment to be erroneous,
I think we have not jurisdiction as a court of error to review it.
Judge Cooley further argues that the old English rule must
have been the liberal one from the fact that in those cases where
the statute has shut out the certiorari, which of late years are
very common, the court may still issue it to review the question
of jurisdiction. This is undoubtedly true. But it must be
remembered that from the beginning the purpose of the writ of
certiorari was to review the regularity or irregularity of proceed-
ings as well as the naked fact of jurisdiction; and this question
of regularity of proceedings is really what the various statutes
forbidding certiorari have shut out from review. This may be
seen from the case of Exparte Hopwood,3 in which the judge
says:
The certiorari is taken away, so we cannot interfere unless they [the

justices] have acted altogether without jurisdiction. . . " But the ques-
tion now is whether we can review the mode in wlhich they have exer-
cised their jurisdiction.
The point decided in the case was that the mode in which the
subordinate tribunal had exercised its jurisdiction could not be
reviewed.
1 5 N. Y. 568. 2 8 Barn. & Cress. I37. 83I5 Ad. & El. N. S. 121.
The liberal New York rule has been adopted also in Wiscon-
sin. This has been done partly by statute, providing for a
statutory certiorari or an appeal from the judicial acts of the
justices; and partly by judicial decision, as regards proceedings
of a summary character and out of the course of the common
law, i.e. administrative decisions. The case of Iron Co. vs.
Schubel, Town Clerk,' decided in I872, holds that mistakes and
errors of law may be corrected on certiorari.2
The better rule at the present time, as derived from these
decisions, is that the province of the writ of certiorari is to
quash the decision of a subordinate administrative tribunal:
first, because it has exceeded its jurisdiction; second, because
it has not followed the formalities required by law; and third,
because it has made an error in the application of a principle of
law to the case at bar -among which errors of law is to
be included the finding of a fact unsupported by evidence.
And to the end that the court of review may decide these
points, it is necessary that the lower court send up in addition
to the mere record all facts which are material, especially the
evidence.
But this liberalizing of the old rule does not mean that the
courts will control by means of certiorari the discretion of the
subordinate tribunal whose acts are reviewed. The courts do
not allow the subordinate tribunal so to make use of its dis-
cretion as to come to a decision which is absolutely unsupported
by evidence; but so long as its discretion is not thus abused,
the courts as a general rule will refuse to control it in any way.
One of the first cases in New York which attempted to enlarge
the province of the writ 3 held that, while the decision of the
lower authority might be quashed on the ground that it had ap-
plied a wrong principle of law, -in this case it had assessed
damages on a wrong principle, - still the assessment of dama-
ges as to amount by the lower authority was absolutely conclu-
sive and could not be changed by the court on certiorari. A
1 29 Wisc. 444.
2 See also State vs. Supervisors, 24 Wisc. 286; State vs. Whitford, 54 Wisc. I50.
3 Baldwin vs. Calkins, I0 Wendell, I67.
similar principle was laid down in a considerably later case,'

where it was said that the justice or injustice of an assessment
for local improvements could not be examined on certiorari. The
same principle, viz. that the discretion of lower authorities may
not be controlled by the courts on certiorari, has been established
in other commonwealths. In the case of Hayward, Petitioner,2
the court, although it permitted the evidence to come before it
in order that it might ascertain whether a correct principle of
law had been applied, said that it would not reverse the decision
of the justices on the ground that the evidence did not warrant
such a decision; since "that was a matter submitted by the
statute to their judgment, and we cannot revise their decision
upon it." In the case of Borough of Sewickly,3 the court held
that the soundness of the discretion of an authority in incorporat-
ing a borough is not subject to review on certiorari. In Com-
missioners' Court vs. Banne,4 it was declared that "upon the
question of the expediency of opening or altering a public road
the commissioners' court exercises a quasi-legislative power and
its decision is not reviewable." The same principle has been
applied by the courts of New York to the question of the assess-
ment of property for purposes of taxation.5 In the case of
People vs. Trustees 6 Judge Earle said:
The statute makes them [the assessors] the judges of the value of the
property for the purposes of taxation. They are required to exercise
their judgment as to its value, notwithstanding any proof that may be
produced before them, and the case would be a very extraordinary one
which would authorize the Supreme Court upon certiorari to review their
judgment. Indeed, it would be quite impracticable in most cases for
the Supreme Court upon certiorari to correct the judgment of the asses-
sors as to value, and my attention has been called to no such case.
It is pretty clearly the rule, therefore, that the courts will not
on certiorari control the discretion of subordinate authorities.
But for various reasons this rule has become unsatisfactory to
1 People vs. Brooklyn, 4 N. Y. 419 (185I). See also Le Roy vs. Mayor, 20
Johns. 430.
2 I0 Pickering, 358. 8 2 Grant's Cases (Pa.) 135. 4 34 Ala. 464.
5 For the general principle as to assessments see Cooley, Taxation (2d ed.), p.
757. 6 48 N. Y. 390.
No. 3-] THE WRIT OF CERTIORARI. 531
the individuals whose interests are affected by these discretion-

ary administrative decisionis. The chief cause of dissatisfaction
is to be found in the great number and relative irresponsibility
of the administrative authorities that have sprung up in this
country as a result of the separation of the administration of gov-
ernment from the admilnistration of justice. Under the old Eng-
lish system most of the really important administrative duties
were discharged either directly by, or under the supervision
of, the justices of the peace, who had obtained a well-recognized
position as judges and who, from the manner of their choice and
from the high social position they occupied, commanded the re-
spect of the people and offered guarantees for impartial and wise
administration. Under the new system, which has established
a host of smaller and less important offices with no permanence
of tenure, the same confidence has not been felt in their wisdom
and impartiality. Under the old system no special need was
felt for the extension of the province of the writ so that it might
control the discretion of the justices. Under the new system,
however, there has been felt a need of controlling the less wise
and more arbitrary action of subordinate administrative officers.
For individual rights may be violated as well by misconception
of facts and indiscretion in action as by an excess of jurisdiction
or a wrongful application of the law.
A further reason for dissatisfaction is found in the fact that
there has never been in tllis country any tribunal to which
appeals might be taken from the decisions of administrative
authorities as to questions of discretion and expediency. In
England the Star Chamber of the Privy Council and, after its
abolition, the court of Quarter Sessions in each county con-
stituted a sort of administrative court, with power to review
the discretionary decisions of administrative authorities. In
this country we have never been able, except in rare cases,
to develop any administrative jurisdiction - ie. any judicial
control over the acts of administrative authorities -except that
which is to be found in the power of the courts to issue certi-
orari and other writs of a similar character, eg. mandamus,
quo warranto, prohibition and injunction, This is the only
relief which our system of administration offers to the individ-

ual whose rights have been injured by administrative decisions.
We find, accordingly, some indications of a tendency to ex-
tend the province of certiorari over discretionary decisions. In
some cases the courts themselves, notwithstanding their usual
conservatism, have felt obliged to relax the strictness of their
rule; and in other cases the legislatures, finding that the courts
were unwilling to give to the individual the relief demanded,
have come to the rescue and have by statute enlarged the prov-
ince of the writ so that the courts might on certiorari control
the discretion of administrative authorities. This movement
has just begun and has not as yet attained such dimensions as
seriously to undermine the general rule. It is nevertheless
worthy of careful examination.
In the first place, as I have said, the domain of administrative
discretion has been invaded by the courts themselves. The
courts have held in a series of cases that, where a statute pro-
vides that an officer may be removed from office for cause only,
the courts have the right to control the discretion of the remov-
ing officer in deciding what is cause.' The courts, it is true,
have not grounded their decisions on any desire to control the
discretion of administrative officers, but on the proposition that
the question, what is cause, is not a question of discretion but
a question of law. But this does not alter the fact that, as a
result of these decisions, the courts do exercise a control over
the discretion of administrative officers - and that too upon
a point where many think it necessary that the administration
should possess full and unlimited discretion. There are besides
a few other cases in which the courts -particularly those of
New Jersey, which have taken in almost every respect a more
liberal view of the province of the writ than the courts of other
commonwealths - have exercised a direct control over the dis-
cretion of administrative authorities. Thus in the case of Exparte
I Cases on this point are People vs. Board of Police, 72 N. Y. 415; People vs.
Board of Fire Commissioners, 72 N. Y. 445; State vs. St. Louis, go Missouri, 19;
Stockwell vs. Township Board, 22 Mich. 34I. See also Kennard vs. Louisiana, 92
U. S. 480.
New Jersey Railroad Co.,' it was held that the court might issue
the writ to certain commissioners on the ground that the dam-
ages which they had assessed were excessive; while in Bellis
vs. Phillips 2 the court intimated that it would interfere with the
judgment of the lower court on the verdict of a jury if it were
made plainly to appear that gross injustice had been done.
In the second place the legislatures have taken up the cause
of the individual and have in several cases so enlarged the prov-
ince of the certiorari as to force the courts through it to control
the discretion of administrative authorities. The point in the
administrative system of the United States where the need
of some control over administrative discretion is most keenly
felt is in the matter of assessments for purposes of taxation.
There is no other place in the whole realm of administrative
action where the interests of the individual come into so direct
conflict with the administration, and there is no place where
some remedy against unjust administrative decisions is more
needed. But, as has been shown, the almost universal rule in
this country is that administrative discretion in the assessment
of property for taxes cannot be controlled on certiorari. To
meet the desire for a remedy, some of our commonwealths have
created a special statutory appeal to some court which com-
mands the confidence of the people in a higher decree than do
the assessors. In New York, however, the legislature has met
this demand by enlarging the province of certiorari. By the laws
of i8 9, chapter 302, section 20, it was provided that a certiorari
to review or correct on the merits any decision or action of the
tax commissioners of New York city should be allowed by the
Supreme Court on the petition of the party aggrieved. It is a
significant fact that the granting of this remedy was coincident
with the introduction of paid professional assessors in place of
assessors elected by the people. In the year i 88o a similar
provision was made for the entire state.3 By the statute then
passed a certiorari may issue from the Supreme Court on the
petition of any person aggrieved by the assessment, and the
court may examine the questions of the illegality of the assess-
1 i6 N. J. L. 393- 2 28 N. J. L. 125. 3 Laws of i88o, chap. 269.
534 POLITICAL SCIENCE QUARTERLY [VOL. VI.
ment, its incorrectness by reason of overvaluation, and its

unfairness by reason of inequality (i.e. because the assessment
complained of is at a higher rate than assessments of other prop-
erty on the same assessment roll). If the allegations shall on
the return appear to be proven, the court may order such assess-
ment, if illegal, to be stricken from the roll; if erroneous or
unequal, it may correct it so as to make it fair and equal, or it
may order a re-assessment. A somewhat similar provision has
been made for the assessment of corporation taxes in New
York.'
Similar provision for judicial control of the discretion of
administrative officers is frequently made in the excise laws.
Such was the case with the " substitute " excise bill lately
before the New York legislature. But in these cases it is
usually the discretion in refusing a license, not the discretion
in granting one, that is subjected to judicial control.
As the purpose of certiorari was originally simply to quash
the action of the subordinate tribunal, the effect of the decision
of the court was usually to quash or to affirm the action ap-
pealed from. Several decisions, however, attempted to go
further and in proper cases to modify or amend the determina-
tion.2 Here again, in New York, the legislature has stepped
in to aid the individual and has provided3 that the court upon
hearing may make a final order, annulling or confirming wholly
or in part or modifying the determination reviewed as to any
or all of the parties. The Court of Appeals has somewhat
limited the application of this section by holding4 that this
section does not give the court the right to modify the discre-
tionary decision within the jurisdiction of the lower authority.
The facts in this case were that the Supreme Court amended
an order of dismissal of the board of fire commissioners by
substituting for dismissal suspension for six months. This,
the Court of Appeals held, the Supreme Court was not justi-
fied by this section in doing.
I See Laws of s885, chap. 501; Laws of I889, chap. 463.

2 See People vs. Ferris, 36 N. Y. 218. 8 Code of Civil Procedure, sec. 2141.
4 People vs. Commissioners, Ioo N. Y. 82.
VI. Conclusions.
The most important results obtained from this study of the

development of the writ, of certiorari in this country may be
summarized as follows:
(i) In order to meet the demands of a changed administrative
system, the number of authorities to which the writ may issue
has been greatly increased. In consequence, the writ has
largely lost its character of an ordinary judicial appeal and is
becoming rather a means of judicial control over administrative
action.
(2) The province of the writ has been greatly enlarged, so
that by its means errors of law may be corrected and decisions
unsupported by the evidence may be quashed.
(3) The decisions of some of the courts and the statutes of
several commonwealths show a tendency to subject the discre-
tion of administrative authorities to the control of the courts.
That this development answers modern needs and is in accord
with modern tendencies is shown by even a cursory glance at
the means of judicial control over administrative action in for-
eign countries. The same impulse - namely, the desire to
protect private rights against executive arbitrariness - which
has occasioned this development of the certiorari in the United
States, has brought about a considerable enlargement of the
jurisdiction of the administrative courts of France and has led
to the establishment of similar tribunals in Germany-tribu-
nals all of which have sprung into existence since the middle
of this century, and of which the most comprehensive date
from the foundation of the German Empire. The problem is
everywhere the same; but our solution differs in one important
respect from that which has been adopted on the continent of
Europe. There the more complete realization of the principle of
the separation of governmental powers, -with its corollary, the
independence of the administration over against the judiciary, -
forced the publicists to find the means of judicial control over
administrative actions in bodies not connected with the ordi-
nary judiciary, and to construct, side by side with the ordinary
536 POLITICAL SCIENCE QUARTERLY
courts, a second system of administrative courts. Here we

have vested the control over the administration in the ordinary
courts. Our solution of the problem differs again from that
which has been reached in England. There an ample means
of control has been found in the courts of Quarter Sessions
and in the device of " stating a case " to the ordinary law
courts. We, on the other hand, have gradually remodelled one
of the old common-law writs and greatly widened its province.
If the same liberal ideas which have obtained in the imme-
diate past continue to obtain in the future, it seems safe to
predict that our present writs will prove amply sufficient to
protect private rights from the abuse of administrative discre-
tion, and that we shall find in our ordinary courts a more simple
system of judicial control over administrative action than that
which has been adopted on the continent of Europe.
FRANK J. GOODNOW.

The Writ of Certiorari

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What was the original purpose of the writ of certiorari?

What was the original purpose of the writ of certiorari?

How has the writ of certiorari evolved over time in the United States?

How has the writ of certiorari evolved over time in the United States?

The Writ of Certiorari

Author(s): Frank J. Goodnow

I. History of the Writ in England.

M ANY of the present features of the writ of certiorari

In the Anglo-Saxon system of administering justice the Norman

1 Gneist, op. ci. p. 165. 2 ibid. pp. I68, 171-

inquiry and recognition of rights as to land, the obligations of

Stubbs, op. cit. I, pp. 387-39I. 2 Gneist, op. cit. I, I68.

court of Common Pleas. Magna Charta provided that the comn

working on separate lines, the three central courts remained

court of King's Bench,' to judge of the ne

a newly created jurisdiction.' Thus was formed in the time of

I Cf. Palgrave, O01. cit. pp. 57-6I.

advice of the royal courts. This came to be done finally by

I Smith, op. cit. p. 518. 2 Gneist, Verwaltungsrecht, p. 406.

methods of appeal from administrative decisions as have been

II. Character of the Wrt in the United States.

authority,l or to apply for any statutory remedy.2 The only

III. What Courts may Issue the Writ.

As the certiorari is a writ of an extraordinary character, it is

(i) Certiorari may not ordinarily be issued by courts of limited

1 In re Kaine, 14 Howard, 103, 131; Exparte Metzger, 5 Howard, 176

8 See Kendal vs. U. S. 12 Peters, 524.

previously a remedy of right, a w

IV. Authorities Subject to the Writ.

Certiorari to review a determination was employed from the

1 Rex vs. Inhabitants in Glamorganshire, i Ld. Raymond, 580; Bacon's Abridg-

become so general that almost all administrative work is attended

cial in character and therefore may be reviewed.' In New York

1 Robbins vs. Bridgewater, 6 N. H. 524; Dorchester vs. Wentworth, 31 N. H.

as to the assessment if it was based upon an illegal ordinance,

1 See as to this point People vs. Mayor, 9 Barb. 535, 542.

theory - and to give less protection to private rights than the

I cannot adopt the conclusion that it is in any sense proper to review

This New York rule seems to have gained a foothold in Ohio.3

1 Cf Dillon, Municipal Corporations (4th ed.), II, 1126, notes.

Cardiff Bridge case -the English judges seem to have been

I Swann vs. Mayor, 8 Gill, I50.

in Maine.' The United States Supreme Court has either held

1 Preble vs. Portland, 45 Maine, 24I.

In view of the above decisions we may safely say, notwith-

1 Rex vs. Inhabitants of Glamorganshire, I Ld. Raymond, 580; Little vs.

record, and provide for an appeal.' In New York, accordingly,

V. Province of the WYrit.

1 N. Y. Code of Civil Procedure, sec. 2121; N. Y. Code of Criminal Procedlure,

3 People vs. Hill, I3 N. Y. Supplement, I86; Law _7ournal, April I3,

1 Cf Justinian's Codex, 2, 40, 5, I: Melius . . . est intacta jura . . . servari

quash, for excess of jurisdiction, their action in ordering money

Jurisdiction depends, however, according to the courts, upon

not inquire whether a verdict or decision was against evidence,'

5 See, e.g., In re Hopkins, E. B. & E. xoo; Regina vs. Allen, L. R. I Q. B.

proved delhors the record. Thus a conviction for violation of

1 Regina vs. Allen, L. R. I Q. B. 120. See also People vs. Goodwin, 9 N. Y.

in the decisions,' the same rule has been established in New

missioners on the ground that in assessing damages they had

where the authority and jurisdiction depends upon a fact to be proved