134 Me. 88 | Me. | 1935
The petitioner for a writ of certiorari in this proceeding applied to the selectmen of Brunswick for a license to plant and propagate clams on the flats adjoining his' lands in that town as authorized by P. L. 1933, Chap. 2, Sec. 43, et seq., and his application was denied. His petition in the usual form prays that a writ of certiorari issue and the action of the selectmen be quashed. Their answer admits the truth of the facts alleged, asserts their authority to refuse to issue the license, and prays that the petition be dismissed. Without ordering the writ to issue, by agreement of the parties the case was certified forward on report.
The case is brought forward on report prematurely. If the tri
Furthermore, the petitioner has mistaken his remedy. The relief sought, as the brief discloses, is an order directing the issuance of the license for which application has been made. It is the office of the writ of mandamus to compel inferior tribunals, magistrates and officers to perform a duty imposed upon them by law. Williams v. Co. Com., 35 Me., 345; Townes v. Nichols, 73 Me., 515, 517. The writ of certiorari issues only to review and correct proceedings' of bodies and officers acting in a judicial or quasi judicial capacity. Frankfort v. Co. Com., 40 Me., 391; Nobleboro v. Co. Com., 68 Me., 551; Devlin v. Dalton, 171 Mass., 338, 341; People, ex rel, Trustees v. Board Supervisors, 131 N. Y., 468; 4 Encyc: Pl. & Pr., 39; 5 R. C. L., 258; 11 C. J., 90, and cases cited. As is said in 2 Spelling on Ex. Remedies, Sec. 1958, “Where an officer or official body is charged with a legal duty and upon proper application refuses to act, mandamus and not certiorari is the proper remedy for the party aggrieved, the proper function of the latter remedy being confined to a review of action already taken, rather than for
Report discharged.
Case dismissed from the law docket.