CERTIORARI. A writ issued by a superi or to an inferior court of record, or other tribunal or officer, exercising a Judicial func tion, requiring the certification and return to the former of some proceeding then pend ing, or the record and proceedings in some cause already terminated, in cases where the procedure is not according to the course of the common law.
The extensive use of this writ and the lack of precise judicial definition of the public bodies and proceedings to which it is applicable lend interest to the early common law definitions, which are of value since the use of the writ ie still usually reg ulated by common law principles and precedents. The most frequently quoted common law defini tions are those of Fitzherbert and Bacon, by the first of which the writ lies in the case of records of the courts, the treasury, sheriffs, coroners, com missioners, escheators ; F. N. B. 554 A. He includes among forms given one to the mayor and sheriff of London in case of indictment and attachment and one to the mayor and sheriffs of York in assize of fresh force sued out before them without writ; id. 554 E, 557 L. Bacon uses only the general terms, "judges or officers of inferior courts"; Bac. Abr. 162 ; but in an enumeration of instances entitled "to what court it lies" he puts an "inquisition taken by a sheriff . . . and the verdict and judgment thereon," which were quashed on the ground that, no notice appearing, the record did not show juris diction, and on objection that the writ did not, he was answered that "there can be no doubt of that if it Is not prohibited by the act of Parliament' , id. 168, citing 4 Burr. 2244. It was said that "the substance of this (Bacon's) definition has never been departed from, except where the statute has broadened the scope of the writ" ; In re Dance, 2 N. D. 184, 49 N. W. 733, 33 Am. St. Rep. 768. The English Court of Appeal says that "certiorari is a writ in aid of justice, and is the apt means of pre venting the infliction or continuance of wrong from any assumption or excess of jurisdiction"; 2 L. R. (K. B.) 318; it is matter of discretion, not of right; id.
Blackstone refers only to it as a means of remov ing criminal causes from an inferior court to the King's Bench, as the supreme court of criminal jurisdiction; 4 ma. Com. 265; or cases of Peers to the House of Lords ; id. 321; or after summary order in a lower court which might be quashed or confirmed; id. 272. It might be granted at the in
stance of either prosecution or defendant, in the former case as matter of right, in the latter as matter of discretion; id. 321.
The function of the writ is to secure the correction of errors of a judicial nature in the proceedings of inferior courts or in the decisions of special tribu nals, commissioners, magistrates and officers exer cising judicial powers affecting the property or rights of a citizen, who act in a summary way, and not according to the course of the common law, and it also applies in many cases to the proceedings of municipal corporations. it has also been allowed when the power is ministerial but necessarily con nected with judicial action; People v. Hill, 65 Barb. (N. Y.) 170; In re Nichols, 6 Abb. N. C. (N. Y.) 474. The writ ie issued in two classes of casee: (1) Where the inferior court has exceeded its jurisdic tion; (2) where it has proceeded illegally and there is no appeal or writ of error ; White v. Wagar, 186 Ill. 195, 67 N. E. 26, 50 L. R. A. 60, quoting Hyslop v. Finch, 99 III. 171.
"Official acts, executive, legislative, administra tive or ministerial in their nature or character, were never subject to review by certiorari. The writ could be issued only for the purpose of re viewing some judicial act ;" People v. Brady, 166 N. Y. 44, 47, 69 N. E. 701; St. Louis, S. F. & T. Ry. Co. v. Seale, 229 U. S. 156, 33 Sup. Ct. 651, 57 L. Ed.
In some states the writ has been abolished by statute so far as the common law name ie con cerned, but the remedy is preserved under the new statutory name of "writ of review"; but this term and the old one mean precisely the same remedy, except so far as it may be modified by statute; People v. County Judge, 40 Cal. 479 ; Sutherlin v. Roberts, 4 Or. 388; Southwestern Telegraph & Tele phone Co. v. Robinson, 48 Fed. 771, 1 C. C. A. 91. • So where, by statute, appellate proceedings are to be taken by appeal in all cases theretofore covered by error, appeal or certiorari, but the right of review ie not changed in extent, it was held that the appeal was in effect a common law certiorari, and the right to issue a certiorari remained the same as before ; Rand v. King, 134 Pa. 641, 19 Atl. 806; so an appeal in a habeas corpus case is equiv alent to a certiorari and brings up only the record; Com. v. Superintendent of Philadelphia County Prison, 220 Pa. 401, 69 Atl. 916, 21 L. IL A. (N. I S.) 939.