522; In re Randall, 11 Allen (Mass.) 472; State v. Probate Court, 72 Minn. 434, 75 N. W. 700 ; Oyster v. Bank, 107 Ia. 39, 77 N. W.
523; Ex parte Howard-Harrison Iron Co., 130 Ala. 185, 30 South. 400; In re Tampa Suburban R. Co., 168 U. S. 583, 18 Sup. Ct. 177, 42 L. Ed. 589; Watson v. City of Plain field, 60 N. J. L. 260, 37 Atl. 615;- Kern's iclm'r v. roster, 16 Ohio, 274; 9 Ad. & El. 40; 33 N. Brunsw. 80; 20 Nova Scotia 283; II\ Quebec Open Ct. 383. And though as stated by Bacon (supra) it may issue out of chalinceN it cannot be used for the review of decre s in equity alleged to be void for wan% of power ; In re Tampa Suburban R. Co., t68 U.. S. 583, 18 Sup. Ct. 177, 42 L. Ed. 589; re Haney, 14 Wis. 417 ; Gilliland v. Adm'rs, 2 Ohio St. 223; "nor can certiorari be made to operate as an injunc tion, an& restrain a tribunal from acting be yond its jurisdiction, however well grounded may be the apprehension in that respect;" Glennon v. Burton, 144 Ill. 551, 33 N. E. 23.
The comon law remedy has been success fully invoked where statutes provided that the decision of the inferior tribunal should be final and confilmsive, upon the theory that it is an inherentlpart of the judicial power of the superior court and cannot he taken away without expresNegatise words ; Murfree V. Leeper, 1 Overt Tenn0 Ritter v. Kunkle, 39 N. J. L. 259 ; ' and eAeU'Vrhare the statute directed that no certiorari should issue to re move proceedings had in pursuance of it, the writ may be used to ascertain whether the proceedings have been invoked in pretence of the statutory authority and are therefore not in pursuance, but in derogation, of it ; Ackerman v. Taylor, 8 N. J. L. 305; id., 9 N. J. L. 65. Possibly the New York Court of Appeals may have come near to the formula tion of a general rule in saying that a com mon law certiorari can only be availed of to review when there is no other adequate rem edy ; in other cases it will be confined to its original and appropriate office, to enable a court of review to determine whether the in ferior tribunal proceeded within its jurisdic tion; People v. Betts, 55 N. Y. 600, which is cited in Harris v. Barber, 129 U. S. 371, 9 Sup. Ct. 314, 32 L. Ed. 697, and the language of which is quoted in People v. Feltner, 51 App. Div. 196, 64 N. Y. Supp. 675. The last case was a certiorari to the secretary of state for granting a charter for a name claimed to be already in use. The court quashed the writ, saying that the existing company had a remedy in equity, but if the charter had been refused there might be no other remedy.
The judgment is either that the proceed ings below be quashed or that they be af firmed ; Har. Certiorari 38, 49 ; Marshall v. Hill, 8 Yerg. (Tenn.) 102; Kincaid v. Smitii, id. 218; Com. v. Turnpike Corporation, 5 Mass. 423 ; Hall v. State, 12 G. & J. (Md.)
329; Weigand v. Malatesta, 6 Coldw. (Tenn.) 362 ; see McAllilley v. Horton, 75 Ala. 491; Hamilton v. Harwood, 113 Ill. 154 ; Taylor v. Gay, 20 Ga. 77 ; Bandlow v. Thieme, 53 Wis. 57, 9 N. W. 920 ; either wholly or in part ; Com. v. Turnpike Corp. 5 Mass. 420 ; Nichol v. Patterson, 4 Ohio 200 ; Bronson v. Mann, 13 Johns. (N. Y.) 461. See, also, Beck v. Knabb, 1 Overt. (Tenn.) 58 ; Henry v. Her itage, 3 N. C. 38. The costs are discretion ary with the court ; Myers v. Town of Pow nal, 16 Vt. 426; Chance v. Haley, 6 Ind. 367; but at common law neither party recovers costs; Low v. Rogers, 8 Johns. (N. Y.) 321; Coro. v. Ellis, 11 Mass. 465 ; State v. Leavitt, 3 N. H. 44 ; Nichol v. Patterson, 4 Ohio 200 ; and the matter is regulated by statute in some states ; Atkinson v. Crossland, 4 Watts (Pa.) 451; Hinchman v. Cook, 20 N. J. L. 271. See MANDAMUS ; PaoCEnENDo. Consult 4 Bia. Com. 202, 265.
By the act of congress of March 3, 1891, establishing circuit courts of appeal, § 6, it is provided that in any case in which the decision of that court is final a certiorari may issue from the supreme court to bring up the record to that court for "its review and determination with the same power and authority in the case as if it had been car ried by appeal or writ of error to the Su preme Court." 1 U. S. Comp. Stat. 550. At the first term of the supreme court, after the passage of this act, upon an application for a certiorari, it was said that "it is evident that it is solely questions of gravity and im portance" that should be certified up to the supreme court either by the action of the cir cuit courts of appeals or by requirement of the supreme court upon certiorari; In re Lau Ow Bew; 141 U. 5, 583, 12 Sup. Ct. 43, 35 L. Ed. 868, where although it was said the jurisdiction should be exercised sparing ly and with great caution, the writ was is sued to determine the effect of the Chinese exclusion acts. The rule thus early laid down was reiterated in several subsequent cases illustrating what the court considered cases of sufficient "gravity and importance." "While the power is coextensive with all possible necessities and sufficient to secure to this court a final control over the litigation in all the courts of appeal, it is a power which will be sparingly exercised, and only where the circumstances of the .case satisfy us that the importance of the question in volved, the necessity of avoiding conflict be tween two or more courts of appeal, or be tween courts of appeal and the courts of a state, or some matter affecting the interests of the nation in its internal or external re lations demands such exercise." Forsyth v. Hammond, 166 U. S. 506, 17 Sup. Ct. 665, 41 L. Ed. 1095.