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 country 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 Writ in the United States.

In this country the general tendency has been to strip the certiorari of its prerogative character, and to reduce it to the position 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.

(1) 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, 1 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, 19 N. Y. 531; People vs. Hill, 53 N. Y. 547; People vs. Commissioners, 82 N. Y. 506. 2 Petty vs. Jones, 1 Iredell L. (N. C.) 408.

authority, 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 certiorari was issued to test the question whether the tribunal whose record was to be brought up had exceeded its jurisdiction; 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.*

(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 consequences will result from its issue, or where the parties cannot be placed in statu quo by its issue, or for a mere defect in form 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, 1 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. 161; Krummick vs. Krummick, 14 N. J. L. 39; Burrows vs. Vandervier, 3 Ohio, 383.

4 Trice vs. Varborough, 4 Iredell L. (N. C.) 11; Kearney vs. Jackson, I Verg. (Tenn.) 294; Skinner vs. Maxwell, 67 N. C. 257; King vs. Williams, 7 Heiskell (Tenn.) 303.

Ex parte Hagaman, 2 Hill (N. Y.) 415; Bannister vs. Allen, 1 Blackford (Ind.) 415; Holden vs. Commissioners, 7 Metcalf (Mass.) 561; Elmendorf vs. Mayor, 25 Wendell, 693; Bentz vs. Detroit, 48 Mich. 544; Carpenter vs. Commissioners, 64 Mich. 474. The time within which the writ may be applied for is sometimes 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. 6 Hancock vs. Boston, 1 Metc. (Mass.) 122; Rutland vs. Worcester, 20 Pick. (Mass.) 71; Gleason vs. Sloper, 24 Pick. 181; People vs. Supervisors, 15 Wendell, 198; People vs. Rochester, 21 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, 18.

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.1 Thus the courts have refused the issue of a certiorari to declare a municipal 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 characteristics 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 certiorari 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 jurisdiction of the English court of King's Bench. What courts have inherited this jurisdiction is usually determined by the constitutions 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 determination 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.

State vs. Lamberton, 37 Minn. 362. See also Granville vs. County Commissioners, 97 Mass. 193; Waston vs. May, 6 Ala. 133; Davis Co. vs. Horn, 4 Greene (Iowa) 94.

(1) Certiorari may not ordinarily be issued by courts of limited jurisdiction, but only by courts of general common-law jurisdiction, 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 jurisdiction; 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,1 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; Ex parte Metzger, 5 Howard, 176; U. S.

vs. Young, 94 U. S. 258, 259; Ex parte Vallandigham, I Wallace, 243.

221.

2 Ex parte Van Orden, 3 Blatchford, 167. See also Patterson vs. U. S. 2 Wheaton,

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

previously a remedy of right, a writ ex debito justitiae, there is 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.1 The regular method of appealing from the decisions of authorities possessed of general common-law jurisdiction was by writ of error. Among the authorities subject to certiorari were included 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 recognized 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 1683; and it has

1 Rex vs. Inhabitants in Glamorganshire, I Ld. Raymond, 580; Bacon's Abridgment, art. Certiorari, B.

This rule has been very generally adopted in the United States. Commonwealth vs. Ellis, 11 Mass. 464; Ex parte 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.) 100; Williams vs. Carman, 1 Gill & J. 184, 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, 1 Salkeld, 263, 1 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.