43 Barb. 232 | N.Y. Sup. Ct. | 1864
By the Court,
The writ of certiorari in this case is directed to the board of supervisors of Livingston county, to Alfred Bell, supervisor of the town of Nunda, and to Whitman Metcalf, town clerk of said town. It recites that the said board of supervisors, on the 3d day of August, 1864, passed a certain resolution providing among
A common law certiorari is a judicial process directed to an inferior court or tribunal, and brings up simply the record of the proceedings of such inferior tribunal. ¡Nothing is before us, therefore, upon this writ, except simply the resolutions of the board of supervisors, and the resolution passed at the special town meeting in Nunda, and the calls or notices and requests to call such town meeting.
The office of the writ of certiorari is to bring up for review in the superior court the record of an inferior court or of a tribunal exercising judicial functions. It is not the office of the writ to bring up the proceedings of any other bodies or classes of public officers. Courts are instituted to decide judicial questions, and superior courts review the record and proceedings of inferior courts, or of officers or tribunals acting in a judicial capacity, and in no other.
In passing the resolution brought before us on this writ, the board of supervisors were not acting in any judicial capacity. They were acting purely in a legislative capacity. They were given by section 22 of the act of February 8, 1864, chapter 8, a large legislative authority and discretion.
They are expressly authorized and empowered, at any meeting of said board duly called and convened, to adopt resolutions to provide for raising money upon the credit of their county for the use of said county, or upon the credit of any town thereof, for the use of such town, for the purpose of paying bounties to volunteers into the military or naval service of the United States. It was, within this grant of power, a question addressed to the discretion of the board of supervisors and confided to their judgment by the legislature, to determine whether they would raise any money, and if so how much, and in what manner they would raise such money, for the purpose specified in such act. It was not a question of a judicial nature, but one of a clear legislative character.
The resolutions passed by the board were acts or measures
The writ has recently been allowed, without question, to correct errors of assessment in Hew York, in the cases of The People v. Commissioners of Taxes for New York, (23 N. Y. Rep. 192;) The same, ex rel. Hoyt, v. The same, (Id. 224,) and The same, ex rel. Bank of Commerce, v. The
The writ to the commissioners of taxes in Hew York was allowed while the roll was before them, after the final adjudication upon the assessment in question, and while they had the power to amend it, and conform it to the judgment of the court. The judgment rendered by the court of appeals in these cases was that the judgment should be reversed, (meaning the judgment of the supreme court affirming the assessment,) and that “ the proceedings be remitted with a direction to correct the assessment roll.” To sustain the writ, there has been quite a tendency to enlarge the sphere of judicial acts, and to regard almost every kind of official act requiring or involving the exercise of judgment or discretion as a judicial act. But this, I think, is a mistake. There is scarcely an act of any public officer or body, or of persons clothed with special powers by or under the authority of law, that does not require and involve more or less discretion. It is simply absurd to call all such acts judicial, and apply to them the principles which govern the review of the proceedings of courts and of judicial officers.
But if a writ of certiorari will lie to a board of supervisors—and I think it would upon the same principle that it goes to assessors—this writ is at least premature. The writ can not go to a court or inferior tribunal till the proceedings instituted or pending in such court or tribunal are completed or ended. It will only lie to bring up the final adjudication of such court or tribunal. (20 John. 80. Lynde v. Noble, 3 Abb. 194. 26 Barb. 637.)
J. C. Smith, Welles and E. Darwin Smith, Justices.]