115 Wis. 57 | Wis. | 1902
The following opinion was filed April 22, 1902:
The commissioners having concluded their labors, filed the result thereof with the county clerk, and gone out of office before the filing of the petition for the writ, obviously they had no control oyer the official record of their proceedings, and were not proper parties for the purpose of bringing the same before the court. If the writ had been directed to them alone, the court would have obtained no jurisdiction to consider any question touching their decision. It has been so often held by this court that a writ of certiorari must go to the custodian of the record of the proceedings sought to be reviewed, that where that is the official history of proceedings of a continuing body, such as a city council or county board, its clerk is deemed the mere agent thereof, and
No complaint being made by the petition of the proceedings for the appointment of commissioners, the only record material to the relators’ propositions, for consideration by the court, was that made by the commissioners which the law required them to file, and which, according to the petition, was filed with the county clerk. It follows that service on such clerk was necessary to jurisdiction to review the commissioners’ decision, and that no other service was necessary. Doubtless it was proper for the court to order the writ served upon parties directly interested in maintaining the validity of the decision and to permit them to have their day in court in respect thereto in the certiorari proceedings. But they were not necessary parties in a jurisdictional sense. The commissioners were not interested in their decision, nor were they in control of any record which could be reached by the writ. Counsel for appellants, to maintain their position that it was proper to direct the writ to1 the commissioners and to require
The practice in this state being firmly established as indicated, it is useless to spend much time referring to authorities elsewhere. The rule here, however, is in harmony with the generally recognized function of the writ of certiorari. It reaches jurisdictional defects only, and only those which appear upon the record of the proceedings called in question which the law requires or authorizes to be preserved as an official history. As said, in effect, in Ward v. Board, 135 Mo. 309, 36 S. W. 648, cited by respondents’ counsel, as nothing but the record proper can properly be presented to the court for consideration by the return to the writ of certiorari, only matters which by law form a part of the official record should be included in the return, and if other matters are included they cannot properly be considered. Under our system the writ of certiorari is used as a means of exercising the constitutional power of superintending control over inferior courts and tribunals in matters of jurisdiction. Textwriters recognize, as the fact is, that such is the ancient function of the writ, but that some courts, with or without the aid of statutory authority, have greatly broadened it. Statements by textwriters in harmony with such broadened function of the writ, which do not recognize the ancient limitation thereof, are quite liable to mislead counsel, and trial courts as well, into applying the broadened function in jurisdictions1 where
While the function of a writ of certiorari is much broader when used to correct errors of judicial and quasi judicial tribunals not proceeding according to the_ course of the common law, where there is no right of appeal or method provided for a direct review, than when used to correct errors of courts exercising strictly judicial powers, in neither ease can it legitimately reach defects other than those of a juris■dictional character. The distinction between the scope of the proceeding in the two cases grows out of this: In proceedings of a purely judicial character, the court having jurisdiction ■of the person and the subject matter may render a valid judgment regardless of how grievously it may err on questions of law or fact in reaching that result. But in the exercise of ■quasi judicial powers, intrusted to boards, councils, commissions, and quasi judicial officers, clear violations- of law in reaching a result which is within the power of the officer or body to reach, proceeding in a legal manner, are considered as jurisdictional errors (State ex rel. Durner v. Huegin, 110 Wis. 189, 239, 85 N. W. 1046) ; the idea being that in reviewing the proceedings of officers or bodies exercising quasi judicial powers the function of the writ extends to keeping them within their- jurisdiction as well as reviewing matters of original jurisdiction (Milwaukee Iron Co. v. Schubel, 29 Wis. 444; State ex rel. Heller v. Lawler, 103 Wis. 460, 79 N. W. 777; State ex rel. Durner v. Huegin, 110 Wis. 240, 85 N. W. 1046). If a board, in reaching a determination, is
It follows from what has been said that on the motion to supersede the writ the court properly refused to consider the complaint that evidence, offered before the commissioners as to property omitted from the tax rolls for 1899 in the city of Hem Claire which was there assessable for such year, was rejected. The petition sufficiently shows that there was no official record of such offer and rejection of evidence. The law did not require any such record to be kept or airy history whatever to be preserved, of the manner in which the commisr sioners reached their conclusion. They were required to file a certified copy of their determination under their hands, with the county clerk of Eau Olaire county, within three months after receiving notice of their appointment. That, and the proceeding clothing the commissioners with jurisdiction of the subject matter of revising the decision of the county board of assessment, constituted all the official records legitimately called for by the writ. State ex rel. Burnham v. Cornwall, 97 Wis. 565, 73 N. W. 63.
What has been said eliminates from this case all questions
The result of the foregoing is that the petition for the writ of certiorari does not allege the existence of any jurisdic-
By the Court. — The order appealed from is affirmed.
Upon a motion by the appellants for a rehearing, it was contended, inter alia, that it has not been the settled practice in this state to confine certiorari for review of bodies not purely judicial to cases where the statute requires the keeping of an official history or account in writing of the transactions sought to be examined, and where such history or account has actually been kept. State ex rel. Foster v. Graham, 60 Wis. 395 ; State ex rel. School Dist. v. Thayer, 74 Wis. 48; State ex rel. Moreland v. Whitford, 54 Wis. 150; State ex rel. Wood Co. v. Dodge Co. 56 Wis. 79; State ex rel. McCune v. Goodwin, 24 Wis. 286; State ex rel. Graef v. Forest Co. 74 Wis. 610; State ex rel. Ennis v. Janesville, 90 Wis. 157, 160; State ex rel. Starkweather v. Superior, 90 Wis. 612; State ex rel. Turner v. Bell, 91 Wis. 271; State ex rel. Gray v. Oconomowoc, 104 Wis. 622. Uor are the cases cited in the opinion herein to tire contrary. The mischief which will result from the adoption of such a rule is obvious and alarming. See Schwartz v. Superior Court, 111 Cal. 106, 43 Pac. 580; Blair v. Hamilton, 32 Cal. 49. The doctrine that the writ may run to one whose office has expired is firmly established. People ex rel. Devlin v. Peabody, 6 Abb. Pr. 228; Harris v. Whitney, 6 How. Pr. 175; People ex rel. Davis v. Hill, 65 Barb. 170.
The motion was denied September 23, 1902.