Board of Sup'rs v. Melton

86 So. 369 | Miss. | 1920

Smith, C. J.,

delivered the opinion of the court.

(After stating the facts as above). The issuance of a writ of certiorari for the removal to tlie circuit court of cases decided, by an inferior tribunal is governed by sections 90 and 91, Code of 1906 (Hemingway’s Code, sections 72, 73). The very simple procedure contemplated by these statutes was not followed in the removal of this case to and in the trial thereof by the court below.

The petition on which the writ of certiorari is to be granted need only set forth the case sought to be removed to the circuit court, and the cause for the removal, so that the judge to whom the application for the writ is made may be able to determine therefrom whether or not the writ should be granted; the sufficiency of the allegations of the petition being for his determination alone. After the writ has been granted the petition ordinarily ceases to be of any further importance, for1 the case to be tried by the circuit court is not made by the allegations of the petition, but by the record brought to it from the inferior tribunal by the writ. Loomis v. Bank, 4 How. 660. When the record made in the inferior' tribunal has been filed in the circuit court, if the case made thereby is one of which the court has jurisdiction, it should proceed with the trial thereof, but., if it is not, it may be dismissed on motion. If no error of law appears from the record to have been committed on the trial of the case by the tribunal from which it was removed, its judgment must be affirmed. But if such an error does so appear the judgment should be set aside, and the proper judgment entered if apparent from the record, or the case may be tried anew on its merits, in which event the procedure on the trial is the same as that in cases tried de novo in. ordinary appeals to the circuit court.

Since boards of supervisors are invested with judicial power, they are necessarily tribunals of the character referred to in section 91, Code of 1906 (Hemingway’s Code, section 73). Railroad Co. v. Adams, 85 Miss. 772, 38 So. 348. But it is not every act of an inferior tribunal that can be 'removed to and re-examined by a circuit court’ on a writ of certiorari, but only such as are of a judicial or a gwm-judicial nature. Railroad v. Adams, supra,; 11 C. J. 120; 5 R. C. L. 258. The orders of the hoard of supervisors which the appellees here seek to have reviewed by the circuit court' were not made in a judicial proceeding, but are mere administrative orders, in no way akin to-“judgments” in “cases decided,” for the review of which only the statute authorizes the issuance of a writ of certiorari; consequently the motion to quash the writ should have been sustained.

Counsel for the appellees frankly concede that the order which they really seek to have reviewed and annulled or modified is the order of the Mississippi live stock sanitary board, but that order cannot be here considered, unless it is the basis for a judgment rendered by the board of supervisors in a judicial proceeding. •

The judgment of the court will be reversed the writ quashed, and the case dismissed.

Reversed and dismissed.