CHAPTER XLI. OF WRITS OF REVIEW, OF MANDATE, AND OF PROHIBITION. The writ of review was a common law remedy designated as a writ of certiorari, and is issued to bring up the records of the proceedings of an inferior court or tribunal, to enable the court of review to determine whether such inferior court or tribunal has proceeded within its jurisdiction.1 Under the provisions of the constitution of 1879 the Supreme court has jurisdiction to issue the writ to any inferior tribunal, board or officer, exercising judicial powers when such tribunal, board or officer has exceeded its or his jurisdiction, and there is no appeal, nor any plain, speedy and adequate remedy; Superior Courts have also jurisdiction to issue the writ to any inferior tribunal, board or officer exercising judicial powers.2 Rule 26 of the Supreme Court provides that in case a Superior Court has jurisdiction to grant a writ of review, of mandate or of prohibition, the Supreme Court will not grant such writ in the exercise of its original jurisdiction, unless the affidavit or petition therefor sets forth the circumstances showing that it is proper that the writ should issue originally from the Supreme Court. An appeal will lie to the Supreme Court from the judgment of a Superior Court rendered in proceedings under an application for either of such writs.3 The writ of certiorari does not lie to review the exercise of legislative functions; nor does it lie to restrain a threatened 1. People v. Commissioners, 30 N. Y. 27. 2. California Constitution, Art. VI, Secs. 2 and 5; Code of Civil Procedure, Sec. 1068. 3. Santa Cruz Gap T. Co. v. Santa Clara County, 62 Cal. 40. 4. People v. Oakland Board of Education, 54 Cal. 375; Wulzen ▼ Supervisors, 101 Cal. 15. exercise of jurisdiction; nor to correct erroneous decisions of an inferior court made within the limits of its jurisdiction; nor in case there is an appeal from the judgment; nor in case of a judgment from which an appeal could have been taken.7 A writ of certiorari brings up for review but one question— and that is, whether the inferior court or tribunal had exceeded its jurisdiction. It cannot be used to correct errors of law committed by the inferior tribunal within the limits of its jurisdiction.S The review under a writ of certiorari may be extended to every issue of law and fact involved in the question of jurisdiction, and not only the record, but the evidence itself when necessary for the determination of that question must be returned to the court granting the writ.9 When a Superior Court has jurisdiction to hear and determine a case on its merits brought to that court by an appeal from the judgment of a justice's court, an order of the Superior Court dismissing the appeal will be annulled in proceedings under a writ of certiorari. 10 The objection that a court has reviewed its decision in an unauthorized mode, goes to the powers of the court; and its action may be annulled by certiorari.11 When the recitals of facts in the judgment or order sought to be reviewed under a writ of certiorari are sufficient to sustain such judgment or order, such recitals are conclusive, and no evidence can be received to impeach them.12 An order of a board of supervisors re-establishing a highway after it has been legally abandoned, if made without proceedings for condemnation and compensation to the owners of land through which it runs, will be annulled upon certiorari at the suit of one of such owners. 13 5. Sayers v. Superior Court, 84 Cal. 642. 6. Sherer v. Superior Court. 96 Cal. 653; Holbrook, Merrill & Stetson 7. McCue v. Superior Court, 71 Cal. 545; Weil v. Light, 98 Cal. 193. 9. Whitney v. Board of Delegates, 14 Cal. 500; Blair v. Hamilton, 32 10. Hall v. Superior Court, 71 Cal. 550. 11. Carpenter v. Superior Court, 75 Cal. 596. 12. White v. Superior Court, 110 Cal. 60. 13. Keena v. Board of Supervisors, 89 Cal. 11. Unless circumstances of an extraordinary character be shown to have intervened, the remedy through a writ of certiorari should be held to be barred after the lapse of one year.14 An order made in the excess of the jurisdiction of the court making such order may be annulled upon certiorari, although such order was made without any objection thereto on that ground.15 The application for the writ must be made on affidavit or verified petition by the party beneficially interested, and the court may require notice of the application to be given to the adverse party, or may grant an order to show cause why it should not be allowed, or may grant the writ without notice.16 The writ may be directed to the inferior tribunal, board or officer or to any other person having the custody of the record of a proceeding to be certified. When directed to a tribunal, the clerk, if there be one, must return the writ with the transcript required. 17 The writ of review must command the party to whom it is directed to certify fully to the court issuing the writ, at a specified time and place, a transcript of the record and proceedings (describing or referring to them with convenient certainty) that the same may be reviewed by the court, and requiring the party in the meantime to desist from further proceedings in the matter to be reviewed.18 It is, however, in the sound discretion of the court granting the writ to have included therein, or to have omitted therefrom, an order staying proceedings in the matter to be reviewed, but if omitted, the power of the inferior court or officer is not suspended or the proceedings stayed. 19 The writ must be served in the same manner as a summons in a civil action except when otherwise expressly directed by the court.20 14. Keys v. Supervisors, 42 Cal. 252; Smith v. Superior Court, 97 Cal. 352. 15. Mastick v. Superior Court, 94 Cal. 347. 16. Code of Civil Procedure, Sec. 1070. 17. Code of Civil Procedure, Sec. 1070; Onesti v. Freelon, 61 Cal 625. 18. Code of Civil Procedure, Sec. 1071. Under the rules of the Supreme Court a copy of the writ and of the petition therefor should be served when the writ is issued out of that court, on the attorney of the party in whose favor the order or judgment sought to be reviewed was made or rendered. When a return is made upon an application for a writ of review, the case must be heard on the return. If the return be defective in any respect, an application should be made under section 1075 of the Code of Civil Procedure for a further return.21 It is not the proper function of a writ of review to add to or modify the record with reference to jurisdictional facts determined therein, but to test the question of jurisdiction on the facts appearing on the face of the record.22 The review upon a writ cannot be extended further than to determine whether the inferior tribunal, board or officer has regularly pursued the authority of such tribunal, board or officer.23 The court on hearing the return to the writ, and after hearing the parties who may attend for that purpose, may give judgment, either affirming or annulling or modifying the proceedings.24 The writ of mandate, or as it is designated at common law, the writ of mandamus, is a common law writ, and was, at common law, a high prerogative writ of a most extensive remedial character.25 Under the provisions of the Code of Civil Procedure this writ may be issued by any court except a justice's or police court, to any inferior tribunal, corporation, board or person to compel an act which the law specially enjoins as a duty resulting from an office, trust or station; or to compel the admission of a party to the use and enjoyment of a right of office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, corporation, board or person; and it must be issued in 21. Hoffman v. Superior Court, 79 Cal. 475. 22. Farmers' and Merchants' Bank v. Board of Equalization, 97 Cal. 23. Code of Civil Procedure, Sec. 1074. all cases where there is not a plain, speedy and adequate remedy in the ordinary course of the law; it must be issued upon affidavit or verified petition on the application of the party beneficially interested.26 The writ may be either alternative or pre-emptory. The alternative writ must state generally the allegation against the party to whom it is directed, and command such party immediately after the receipt of the writ, or at some other specified time, to do the act required to be performed or to show cause before the court at a specified time and place why he has not done so; the pre-emptory writ must be in a similar form, except that the words requiring the party to show cause why he has not done as commanded must be omitted and a return day must be inserted. When the application to the court is made without notice to the adverse party, and the writ be allowed, the alternative must be first issued, but if the application be made on due notice, and the writ be allowed, the pre-emptory writ may be issued in the first instance. The notice of the application when given must be at least ten days. The writ cannot be granted by default. The case must be heard by the court, whether the adverse party appear or not.27 The writ must be served in the same manner as a summons in a civil action except when otherwise directed by order of court. Service upon the majority of the members of any board or body is service upon the board or body, whether at the time of the service the board, or body was in session or not.28 The Supreme Court will not in the exercise of its original jurisdiction grant the writ unless the affidavit or petition therefor sets forth the circumstances showing that it is proper that the writ should issue originally from the Supreme Court.29 When the writ is issued by the Supreme Court to an inferior tribunal, a copy of the writ and of the affidavit or petition there 26. Code of Civil Procedure, Secs. 1085, 1086. 27. Code of Civil Procedure, Sec. 1088. 28. Code of Civil Procedure, Sec. 1096. 29. Rule 26 of the Supreme Court. |