in which there is no appeal, etc. Unless the case be brought within both of these conditions, the writ must be dismissed.-Bennett vs. Wallace, Jan. Term, 1872; Barber vs. San Francisco, Jan. Term, 1872; Yenawine vs. Richter, April Term, 1872; People vs. County Judge of San Francisco, 40 Cal., p. 479. Certiorari lies to annul an order of a Justice of the Peace granting a new trial, upon his own motion.-Winter vs. Fitzpatrick, 35 Cal., p. 269. If the defendant appeals, the County Court has no jurisdiction to inquire into errors committed to the injury of the people, who have not appealed, and if it does, certiorari lies.-Morley vs. Elkins, 37 Cal., p. 454. The writ will lie to review the action of the Board of Supervisors; otherwise, their action would be beyond control.-People vs. Supervisors, 8 Cal., p. 59; Hastings vs. City and County of San Francisco, 18 Cal., p. 49; Murray vs. Board of Supervisors of Mariposa County, 23 Cal., p. 492. A Board of Supervisors has no jurisdiction to reject an official bond, except for the reasons that it is not in form and substance in compliance with the requirements of the statute, or is not executed by sufficient and responsible sureties. Certiorari lies when the Board exceeds that jurisdiction.-Miller vs. Board of Supervisors of Sacramento County, 25 Cal., p. 94. A plaintiff sought to enjoin a sale of personal property under an execution issued upon a judgment recovered against him in a Justice's Court, on the ground that the summons was never served on him, and therefore that the Justice never acquired jurisdiction of his person. It was held: that if the time for appeal had elapsed he could apply to the County Court for a writ of certiorari, and thus review the action of the Justice in rendering the judgment, so far as the question of jurisdiction is concerned. Comstock vs. Clemens, 19 Cal., p. 78. An order punishing for contempt, which does not specify on its face wherein the contempt consisted, will be reversed on certiorari.-Ex Parte Field, 1 Cal., p. 187; see, also, People vs. Turner, 1 Cal., p. 152. C. obtained a judgment against H. in the County Court, for the restitution of certain lands; defendant appealed to the District Court, where the judgment was affirmed; and the defendant again appealed to the Supreme Court, where both judgments were reversed, and the cause remanded to the District Court for further proceedings. After the remittitur was filed in the District Court, the County Court issued a mandamus commanding the Clerk to issue a writ of restitution, pursuant to the original judgment in that Court; and, on the petition of H., a certiorari was issued, to remove the proceedings to the Supreme Court. Held: that the writ of certiorari was the proper remedy; that the judgment to be enforced having been reversed by the Supreme Court, the County Court exceeded its jurisdiction in issuing the mandamus.-Clary vs. Hoagland, 5 Cal., p. 476. The decision of the Board of Delegates, in the case of contested election for Chief Engineer, is a judicial decision, and subject to review on certiorari. The extent of such review is to inquire whether the Board has exceeded its jurisdiction. - Whitney vs. Board Delegates S. F. Fire Department, 14 Cal., p. 479. As to how far the proceedings of Boards of Supervisors are judicial, and hence reviewable on certiorari, and how far and when legislative, and hence not so to be reviewed, discussed.-Robinson vs. Board of Supervisors of Sacramento, 16 Cal., p. 208. 2. WHEN THE WRIT WILL NOT LIE.-Certiorari can only issue to an inferior officer or tribunal exercising judicial functions. The act to be reviewed must be judicial in its character. The appointment of a member of the Board of Supervisors by a County Judge is not a judicial act.-People vs. Bush, 40 Cal., p. 344. Certiorari does not lie to annul an order merely erroneous but not void.-People vs. Elkins, 40 Cal., p. 642. If the County Court refuses to hear an appeal in a criminal case for the reason that no statement has been made, it is error, but cannot be reviewed on certiorari.-Morley vs. Elkins, 37 Cal., p. 454. A writ to the Board of Supervisors, on the ground of want of jurisdiction, is premature, if taken before the action of the Board.-Wilson vs. Supervisors, 3 Cal., p. 386. The writ is not the proper remedy if there has been no excess of jurisdiction.-Cutter vs. Stark, 7 Cal., p. 244. Nor where the party has an adequate legal remedy by appeal.-Clary vs. Hoagland, 13 Cal., p. 173; People vs. Shephard, 28 Cal., p. 115. 3. GENERALLY.-The jurisdiction of the Supreme Court on an appeal from the judgment of a District Court, in certiorari, does not depend upon the amount in controversy.-Winter vs. Fitzpatrick, 35 Cal., p. 269. An appeal lies from the judgment of a District Court in an action for a mandate, writ of review, or quo warranto.-Brewster vs. Hartley, 37 Cal., p. 15. A Justice of the Supreme Court cannot issue the writ of certiorari, nor can the writ issue at chambers; it must issue upon the order of the Court.-Smith vs. City of Oakland, 40 Cal., p. 481. Under this Code the Supreme Court is always open and in session for the purpose of issuing writs of certiorari, etc. See Secs. 1069. (§ 457.) The application must be made on affidavit by the party beneficially interested, and the Court may require a 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. NOTE. For cases bearing upon the question as to be directed the inferior etc. 1070. (§ 458.) The writ may be directed to the The writ to inferior tribunal, Board, or officer, or to any other per- tor son having the custody of the record or proceedings to tribunal, be certified. When directed to a tribunal, the Clerk, if there be one, must return the writ with the transcript required. the writ. 1071. (§ 459.) The writ of review must command Contents of 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. NOTE.-If the Board of Equalization do not take down and preserve the evidence in the matter of equalization, and have the same filed with their Clerk, the evidence cannot be certified by the Clerk in his return to a writ of certiorari. He can return only a transcript of such documents, orders, etc., as remain of record or on file in his office. It is not made the Clerk's duty to take down or preserve the evidence.-Central P. R. R. Co. vs. Placer County, 32 Cal., p. 582; same vs. same, 34 Cal., p. 352. But see, under the revenue law of the Codes, Secs. 3672 to 3682 of the Political Code. Proceedings in 1072. (§ 460.) If a stay of proceedings be not intended, the words requiring the stay must be omitbe stayed, ted from the writ; these words may be inserted or inferior Court may or not. Service of the writ, The review under the omitted, in the sound discretion of the Court, but if omitted, the power of the inferior Court or officer is not suspended or the proceedings stayed. 1073. (§ 461.) The writ must be served in the same manner as a summons in civil action, except when otherwise expressly directed by the Court. NOTE. For manner of serving summons, see Secs. 410, 411, 412, 413, and 415, of this Code. 1074. (§ 462.) The review upon this writ cannot writ, extent be extended further than to determine whether the of. A defective return of the writ may be perfected. inferior tribunal, Board, or officer has regularly pursued the authority of such tribunal, Board, or officer. NOTE.-Mere irregularity intervening in the exercise of an admitted jurisdiction-mere mistakes of law committed in conducting the proceedings in an inquiry which the tribunal had authority to entertain, are not to be considered in certiorari-otherwise that writ would be turned into a writ of error.-C. P. R. R. Co. vs. Board of Equalization of Placer Co., April Term, 1872; People vs. Burney, 29 Cal., p. 459; People vs. Dwinelle, 29 Cal., p. 632; People vs. Board of Delegates of the S. F. Fire Department, 14 Cal., p. 479; see, also, note to Sec. 1068, ante. A judgment rendered upon appeal by the County Court for the sum of $300, is void. Upon certiorari the District Court cannot modify the judgment, it must set it aside.-Will vs. Sinkwitz, 39 Cal., p. 570. 1075. (§ 463.) If the return of the writ be defective, the Court may order a further return to be made. When a full return has been made, the Court must hear the parties, or such of them as may attend for Hearing that purpose, and and may thereupon give judgment, either judgment. affirming or annulling, or modifying the proceedings and below. NOTE.-Blair vs. Hamilton, 32 Cal., p. 49; C. P. R. R. Co. vs. Placer Co., 32 Cal., p. 582; same vs. same, 34 Cal., p. 352. 1076. (§ 464.) A copy of the judgment, signed Copy of the judgment must be sent to the inferior by the Clerk, must be transmitted to the inferior tribunal, Board, or officer having the custody of the tribunal. record or proceeding certified up. rolls. 1077. (§ 465.) A copy of the judgment, signed Judgment by the Clerk, entered upon or attached to the writ and return, constitute the judgment roll. NOTE. For rules of practice and appeals, see Secs. 1109 and 1110, post. For costs, see Secs. 1022 and 1024, ante. CHAPTER II. WRIT OF MANDATE. SECTION 1084. Mandate defined. 1085. When and by what Court issued. 1086. Writ, when and upon what to issue. 1087. Must be either alternative or peremptory. Substance. 1089. The adverse party may answer under oath. 1090. If an essential question of fact is raised, the Court 1091. The applicant may demur to the answer, or counter- 1092. Motion for new trial, where made. 1093. The Clerk must transmit the verdict to the Court 1094. If no answer be made, or if the answer raise no the Court. 1095. If the applicant succeed, he may have damages, costs, and a peremptory mandate. 1096. Service of the writ. 1097. Penalty for disobedience to the writ. 1084. (§ 466.) The writ of mandamus must here- Mandato after be designated the writ of mandate. 2-VOL. II. defined. |