| Ill. | Jan 15, 1862
The only office which the common law writ of certiorari performs, is to certify the record of a proceeding from an inferior to a superior tribunal. When issued and served, it becomes the duty of the inferior court or body, to whom it is directed, to transmit a full and complete transcript of the record of the proceeding, of which complaint is made, properly certified, to the court awarding the writ. It is not the duty of the jurisdiction to which it is directed, to certify or return facts dehors the record, but simply the record itself. Upon the return when made, the superior court tries the case upon the record alone, and it is not admissible to try it upon the allegations contained in the petition for the writ, or on facts, not contained in the record so returned. In this proceeding no trial can be had upon any issue of fact. It must be by an inspection of the record, returned in obedience to the writ.
When the return is sufficient, it is the duty of the court to try and determine, whether the inferior tribunal had jurisdiction of the parties and the subject matter, and whether it has exceeded its jurisdiction, or has otherwise proceeded in violation of law. If from the record it shall appear that the proceeding is irregular in any of these particulars, the 'court should quash and vacate the entire proceeding, otherwise dismiss the writ. A trial on a return of this character, is in many respects like a trial on a writ of error, it being a trial upon an issue of law and not of fact. This proceeding is wholly different from a trial on our statutory writ of certiorari, inasmuch as that is a trial de novo.
In this case no question is raised, as to the jurisdiction of the supervisors over the subject matter. Nor is it denied that they had legal authority to reverse the action of the commissioners of highways in locating the road. But it is insisted that it appears from the return, that they did not conform their action to the requirements of the law, by failing to pass over and view the entire road, before they reversed the order by which it had been located. The return does show, that the supervisors examined the road so far as they deemed it necessary, and one of them returns specially, that it was examined as far as there was any dispute. The legal presumption would be, that they haa acted in conformity with the duty imposed by the statute, if it appeared from the record that they had acquired jurisdiction, although the return had been silent as to the view.
The 3rd Sec., Art. 24, of the chapter entitled Counties, (Scates’ Comp. 353,) requires the commissioners to “ personally examine the proposed alteration, discontinuance, or route for the new road proposed to be laid out, and shall hear any reasons that may he offered for or against altering, discontinuing or laying out the same.” The twelfth section of the same article provides, that the supervisors on an appeal, shall convene at the time and place mentioned in the notice, and hear the proofs and allegations of the parties. The act confers power to issue process to compel the attendance of witnesses, and it provides that their decision shall embrace the whole matter in controversy. They are first to consider the propriety and expediency of locating, altering or discontinuing the road; and secondly, the subject of damages, if embraced in the appeal. Even if the provisions of the third section apply to the action of the supervisors trying the appeal, it would only require them to make a personal examination of the road, so far as might be necessary to arrive at a just and fair conclusion.
It is not imperative that they shall pass over ¿very part of the proposed road. It might “be, that the whole objection urged against the road, referred to a specified point in the route. As if the crossing a stream might involve too large an outlay of money and labor, to justify its location. In such a case; they by passing over a small portion of the line of the road, could determine the question in dispute, as accurately as if they passed over every part of it. Or the evidence adduced might be so clear and satisfactory, as to render a personal examination of the entire route useless. They might, by passing over a part, be able to inspect the remainder as satisfactorily as by traveling over it. As this return shows that the road -was examined as far as they deemed it necessary, we must presume they examined the portion about which the controversy existed, or so far as was necessary to convince them that the road was inexpedient, and not required by public necessity. Upon this return we do not perceive anything which indicates that they exceeded their jurisdiction, or decided against the law.
The commissioners were the parties plaintiffs in this proceeding, or at any rate, they made themselves such. They instituted ■ and continued the proceeding in their own name, and are estopped now, to complain that they have been mulcted in costs. If they were only appearing on behalf of the town, they should have acted in its name and not their own, but there is nothing to show that such was their design. The judgment against them for costs was properly rendered in the court below.
The judgment of the court below is therefore affirmed.
Judgment affirmed.