Deberry v. President of Holly Springs

35 Miss. 385 | Miss. | 1858

Handy, J.,

delivered the opinion of the court.

This was an appeal, by certiorari, to the Circuit Court, from an order of the Board of Police of Marshall county, granting license to the appellant to sell spirituous liquors, in small quantities, in the town of Holly Springs. The President and Board of Selectmen filed their petition, stating that the town of Holly Springs contained a population of more than two thousand persons, at the time of granting the license, and that the right to grant the license belonged exclusively to the corporation, and praying that the proceedings of the Board of Police, in granting the license, should be brought up by certiorari, and that the order granting the license should be set aside, and reversed. The writ was awarded and issued, and at the return term the appellee, now the appellant here, moved the court to quash the writ, upon sundry grounds. This motion was overruled, and subsequently, upon the trial, the order of the Board of Police was reversed, and judgment rendered for the President and Selectmen.

The grounds of error relied upon, are those upon which the motion to quash was founded.

1st. It is objected, that the President and Board of Selectmen could not prosecute the writ of certiorari, because they were not a party to the proceeding by which the license was granted by the Board of Police; and that none but a party to the record, or judgment, can maintain the writ of certiorari, or an appeal. This is the rule at common law. But the remedy of certiorari, or appeal, in such cases, is much enlarged by our statute, Hutch. Code, 712, § 45, which provides, that “ it shall and may be lawful for all persons who feel themselves aggrieved by the judgment of the Board of Police of any county, to appeal, by bills of exceptions, or cer-tiorari, to the Circuit Court of his county.” This cannot be confined to persons who are mere technical parties to a proceeding in that tribunal; for there are no parties there, who are strictly so by process, appearance, pleading, &c. Unless the words, therefore, have an enlarged extent, adapted to the nature of the proceedings in that tribunal, the great majority of the cases in which that tribunal may pass upon the rights of persons, would not come within the statute. It therefore appears, from the comprehensive language used, that the legislature intended to give the remedy of appeal by certiorari, to any person aggrieved by the judgment of such a board, and who might show, by evidence apart from the proceedings there', that his right was injured.

2d. The order of the board, awarding the license to the plaintiff in error, is clearly such a judgment as the statute contemplates as the subject-matter of appeal. It is a decision of the question submitted to it, whether he was entitled to license from the board, and that decision in his favor, was against the right of the town corporation to grant the license, and to receive the money to be paid for it. It was an adjudication of a question of right by a proper tribunal.

3d. The objection taken to the signature of the bond, that it is seale^ with the private seal of the president of the corporation, and not with the seal of the corporation, is avoided by the fact appearing in the record, that the corporation has no common seal, and the charter authorizes it to contract without common seal. Sec. 3.

4th. The objection to the bond, that its condition is to perform the judgment and decree of the court, and not to pay such damages as should be sustained in consequence of the certiorari and super-sedeas, would probably be well taken, if the case depended upon the sufficiency of the bond. But that question becomes immaterial in the present attitude of the case. After the overruling of the motion to quash, the case progressed to trial upon its merits, and a judgment was rendered in favor of the president and selectmen. That judgment being correct, no damage was sustained by the adverse party, by reason of the inadequacy of the bond, and that would be no ground for reversing the judgment, upon the merits of the ease.

Judgment affirmed.