15 Md. 193 | Md. | 1860
delivered the opinion-of this court.
W hether an appeal lies in cases of certiorari may depend on the nature of the proceedings, and the object for which that remedy may have been invoked.
Where, as in the case of Crockett vs. Parke, 7 Gill, 237, the court on the return of the writ is called upon to exercise a quasi appellate power in examining the proceedings of an inferior jurisdiction, which has authority to act in the premises, the judgment is final, and no appeal lies to this court. But where, as in Swann vs. Mayor & C. C. of Cumberland, 8 Gill, 150, the writ is sued out to test the power and jurisdiction of the inferior authority to act at all in the matter, the court to which the process is returned acts in its ordinary common law capacity. The proceeding is not limited or special, in the sense in which these terms are generally employed, nor appellate, but according to the course of the common law, and an appeal will lie. This we take to be the distinction between these cases, and if they cannot be so reconciled, the latter must be regarded as overruling the former, Crockett vs. Parke originated in a proceeding for a forcible entry and detainer in which justices of the peace are clothed with jurisdiction to be exercised in the manner prescribed by law. In the other case the corporate authorities of Cumberland sought to levy taxes for improvements under an ordinance which they had no power to pass, and which, therefore, conferred no authority on the commissioners to improve the street in the manner attempted by them. In the first case the appeal was dismissed; in the other it was entertained, the judgment below reversed, and the proceedings of the authorities of Cumberland quashed. This case, therefore, would be an authority for our considering the questions presented by the record, were it not for a well settled doctrine of this court, that where the circuit court is
The charter of the appellee (1827, ch. 72, sec. 15) provides for th'e confirmation of inquisitions by the county courts, if no sufficient cause be shown to the contrary. The words employed, as we think, embrace the questions suggested and argued in this cause, including, as well, the right of the appellee to condemn the franchise of the appellant, for no better cause could be assigned against the confirmation than want of power to condemn the particular property proposed to be taken. We could not revise a judgment confirming the inquisition without interfering with the exclusive jurisdiction of that court. The Act of 1815, ch. 136, under which the authorities of Cumberland claimed the power they sought to exercise, does not require a confirmation by any court; the appellant, Swann, therefore, was entitled to test the power by the process of certiorari, as a common law remedy. The principle here stated was recognized in the case of Hamilton vs. Annapolis & Elk Ridge Rail Road Co., 1 Md. Rep., 553. One of the positions there taken against the company was, that it had no authority, under the charter, to hold a second inquisition for the condemnation of land for the uses of the railroad, but the court held that the county court was the proper place to have resisted the inquisition; a tribunal having exclusive and final jurisdiction over that matter, and from whose decision there was no appeal. We are of opinion, therefore, that the Superior court properly quashed the certiorari for the want of jurisdiction over the subject-matter at that stage of the proceedings.
Order affirmed with costs.
