to examine the validity of such ordinances and acts of a municipal corporation as are of a judicial character, and not such as are legislative or ministerial in their nature, is not adopted in New Jersey, and in that State this writ has long been used to test the validity of the acts and ordinances of such corporations, whatever their nature, whether legislative, ministerial, or judicial, and it is considered ordinarily to be the appropriate remedy; but equity will also, in proper cases, entertain jurisdiction. And in other States the powers with which the municipal authorities are clothed, to be exercised whenever in their opinion the convenience or welfare of the inhabitants requires it, are considered to be judicial, and hence certiorari lies to remove proceedings thereunder to the proper court for examination; but if the local authorities have decided that the public convenience or welfare requires the exercise of the power, as, for example, the establishment or improvement of a street, the decision of such a question cannot, without statutory provision to that effect, be judicially revised on certiorari. This is so for the reason that, aside from Wilson, 32 Minn. 145; State v. St. Paul, 34 Minn. 250; Attorney-General v. Northampton, 143 Mass. 589, holding that this writ does not lie to quash proceedings of a city council in appointing a police officer in violation of a statute for the improvement of the civil service. In Thus a taxpayer may apply for certiorari to annul an order or resolution made in excess of the jurisdiction of the board when exercising judicial functions. California, the county board has no power to contract for any county printing without ten days' public notice that such contract will be let to the lowest bidder. Maxwell v. Stanislaus Co. Sup., 53 Cal. 389. In Fonda v. Canal Appraisers, 1 Wend. (N. Y.) 288, a certiorari was granted where the damages of a party were appraised without notice, and without giving him an opportunity to be heard or to produce testimony. 1 Camden Treas. v. Mulford, 26 N. J. L. 49 (1856); Carron v. Martin, Ib. 594 (1857); Morris Canal & B. Co. v. Jersey City, 12 N. J. Eq. 252; Holmes v. Jersey City, Ib. 299. Further, as to office of the writ. State v. Hudson, 32 N. J. L. 365; State v. Donahay, Col., 30 N. J. L. 404; Jersey City v. State, Ib. 521; State v. Jersey City W. Comm'rs, Ib. 217; supra, sec. 906, and note; Mowery v. Camden, 49 N. J. L. 106. The Supreme Court will not weigh the evidence. State v. Newark Pol. Comm'rs, 49 N. J. L. 170. What acts are judicial, and what ministerial, in their nature. Camden Treas. v. Mulford, supra; Iske v. Newton, 54 Iowa, 586; Board of Aldermen of Denver v. Darrow, supra. The writ is properly directed to the municipal corporation by name, since the possession of the record by its officer or agent is, in legal contemplation, its own possession. Davis v. Harrison, 43 N. J. L. 79; ante, secs. 870-874; infra, sec. 929, note. 2 Dwight v. Springfield, 4 Gray (Mass.), 107 (1855); Parks v. Boston, 8 Pick. (Mass.) 218 (1829); Stone v. Boston, 2 Met. (Mass.) 220; Fay, Petitioner, 15 Pick. 243 (1834); Monterey v. Berkshire Co. Comm'rs, 7 Cush. (Mass.) 394 (1851); ante, sec. 94. In Georgia, certiorari was held to lie to a city council that accused, tried, and dismissed a city officer for alleged official neglect, the Constitution providing that the superior courts "shall have power to correct errors in inferior judicatories by a writ of certiorari," the council, in trying and dismissing their officer, being regarded as a judicatory. Macon v. Shaw, 16 Ga. 172 (1854). See Shaw v. Macon, 19 Ga. 468; Board of Aldermen of Denver v. Darrow, supra. such a statute, questions of this character are not judicially review able, and for the further reason that certiorari, unless otherwise provided by statute, only lies to correct errors of law in inferior jurisdictions. Where an appeal is allowed, it, in general, takes up the cause or proceeding for determination de novo, unless otherwise ordered by statute; but certiorari is not a substitute for an appeal, and is not designed to correct errors of fact.2 Although § 928 (742). What may be examined and reviewed. there is some contrariety of opinion as to just what the writ removes, and as to whether the evidence, if certified, can be considered at all, the more liberal and better view is that the revisory court may not only inquire into the jurisdiction of the inferior tribunal, but into errors of law occurring in the course of the proceedings and affecting the merits of the case, and may also examine the evidence embodied in the return," not to determine whether the probabilities preponderate one way or the other, but simply to determine whether the evidence is such that it will justify the finding as a legitimate inference from the facts proved, whether that inference would or would not have been drawn by the superior tribunal." 3 1 Ante, secs. 94, 908. 2 State v. Bill, 13 Ired. L. 373; State v. Stewart, 5 Strob. (S. C.) 29; State v. Swift, 1 Hill (S. C.), 360; State v. Cockrell, 2 Rich. (S. C.) 6; post, sec. 928. 3 Jackson v. People, 9 Mich. 111 (1860), where the subject is fully and ably examined by Mr. Justice Campbell, and the propositions of the text fortified by the authorities cited. In Massachusetts it is held that the Superior Court, on certi orari, can only examine into the regularity and legality of the proceedings; that is, whether the inferior jurisdiction has pursued the powers granted, and conformed to the requirements of the law under which it professes to act. Ante, sec. 440, note; Parks v. Boston, 8 Pick. (Mass.) 218; Dwight v. Springfield, 4 Gray (Mass.), 107; Fay, Petitioner, 15 Pick. 243. On a petition to quash the proceedings of the selectmen of a town, claiming to act under Statutes of 1873, chap. ccxiv., in making certain public improvements, and in assessing the expenses thereof on the estates benefited, it was held in Locke v. Lexington, 122 Mass. 290: 1. That a writ of certiorari lies only to correct the errors and restrain the excesses of jurisdiction of § 929 (743). When Certiorari does not lie. From inferior jurisdictions an appeal or writ of error exists only as it is provided by law, but where a remedy by writ of error or by appeal is given, a common-law certiorari will not, without legislative aid, be sustained.1 But if an appeal where it exists is improperly denied, or if the party is deprived of it by fraud or accident, he may have his whole case reviewed by certiorari, both as to matters of law and of fact; and where the right of appeal is not allowed or does not exist, the aggrieved party is still entitled to have his case revised by a superior tribunal.2 Remedy by Prohibition. - In some of the States the § 930 (744). When proper Remedy. writ of prohibition is resorted to to prevent municipal corporations 674; Daws, In re, 8 A. & E. 936; s. c. 1 P. & D. 146. In Missouri, certiorari brings up for review only the facts appearing on the face of the record. State v. Kansas City, 89 Mo. 34. In New York it was held that the supervisory court is confined, if its powers are not enlarged by the statute, to an examination "to see whether the limited (or subordinate) jurisdictions have exceeded their bounds," kept within the limits of the jurisdiction. The case cannot be retried upon the evidence or its merits. The record alone, or that which stands for it, is regarded. People v. New York, 2 Hill (N. Y.), 9 (1841): Mount Morris Square, In re, 2 Hill (N. Y.), 14; 1 Hill (N. Y.), 674; Stone v. New York, 25 Wend. 157, 167, and authorities cited by Paige, senator; People v. Rochester, 21 Barb. 656; s. p. 2 Hill (N. Y.), 27, and cases there cited; Rex v. Morely, 2 Burr. 1040, 1042; 25 Wend. 168, and authorities there cited; Albany, In re, 23 Wend. (N. Y.) 277, and cases cited and commented on by Cowen, J., 6 Wend. (N. Y.) 565. Construing code as to what may be determined upon the return to a writ of certiorari. People v. Comm'rs, &c., 106 N. Y. 64 (1887); People v. Fire Comm'rs, 106 N. Y. 257 (1887); People v. Fire Comm'rs, 100 N. Y. 82. In Wisconsin. Milw. Iron Co. v. Schubel, 29 Wis. 444 (1872); Driscoll v. Smith, 59 Wis. 38; Oshkosh v. State, 59 Wis. 425. 1 Duggen v. McGruder, Walk. (Miss.) 112; Rundle v. Baltimore, 28 Md. 356 (1867); Beasley v. Beckley, 28 West Va. 81; Wilson v. Burks, 71 Ga. 862; Re Pearce, 44 Ark. 509; Galloway v. Corbitt, 52 Mich. 460; Storm v. Odell, 2 Wend. (N. Y.) 287; State v. Wakely, 2 Nott & McC. (S. C.) 410; Mount Morris Square, In re, 2 Hill (N. Y.), 14, 27, and the many authorities cited by Cowen, J.; and it was there held that the right of opposing in the Supreme Court the report of the commissioners of estimate and assessment in proceedings to open and widen streets was in the nature of a remedy by appeal, and therefore certiorari would not lie to review their proceedings. See, also, People v. Covert, 1 Hill (N. Y.), 674 ; ante, secs. 200, 440, 611. So delay may defeat right to a certiorari. Elmendorf v. New York, 25 Wend. 693, adopting analogy of statute relative to writs of error. Reynolds v. Los Angeles Co. Sup'r Court, 61 Cal. 372; Williams v. Sacramento Co. Sup., 65 Cal. 160. Supra, secs. 804, note, 924, note. Writ, how directed. Bogart v. New York, 7 Cow. (N. Y.) 158; Davis v. Harrison, supra, scc. 927, note. Practice under writ. Macon v. Shaw, 14 Ga. 162. 2 State v. Bill, 13 Ired. L. 373 (1852). As to right and manner of appeals by municipal corporations, see, generally, chapter on Municipal Courts, ante, secs. 432, 439, 440; also, Pottsville Bor. v. Curry, 32 Pa. St. 443; Robinson v. Jefferson County, 6 Watts & S. 16; Monaghan v. Philadelphia, 28 Pa. St. 207. Supersedeas necessary to stay proceedings to open street. Dusseau v. Municipality, 6 La. An. 575. from transcending the bounds of their jurisdiction or exercising powers not conferred.1 A manifest difference between the writ of prohibition and the writ of injunction is this: the former operates upon the court, and the judge or officer who disregards it may be punished; the latter operates upon the party alone, but does not interfere with the court itself. Where prohibition is a proper remedy, the writ will not be granted unless the party is in danger of being injured by a suit actually depending; it will not be granted because such a suit is threatened.3 1 Mayo v. James, 12 Gratt. 17; Warwick v. Mayo, 15 Gratt. 528; Clayton v. Heidelberg, 9 Sm. & M. (17 Miss.) 623. In Arkansas the writ does not lie where the inferior court has jurisdiction of the subject-matter, on a suggestion of erroneous proceedings. Blackburn, In re, 5 Ark. 21. So in Georgia. Turner v. Forsyth, 3 South East. Rep. 649 (1887). So in Minnesota. State v. Cory, 35 Minn. 178 (1888). The reports of judicial decisions in South Carolina show that it is the constant practice in that State to restrain by prohibition, not only inferior judicial tribunals, but also municipal corporations and corporations sub modo, from the exercise of unwarranted powers, or the imposition of penalties beyond their jurisdiction. State v. Christ Church Par. R. Comm'rs, 1 Mill Const. (S. C.) 55 (1817), where the subject is fully examined; McKee v. Anderson Council, Rice L. (S. C.) 24 (1838); Charleston Council v. Pinckney, 1 Tr. Const. (S. C.) 42 (1812); s. c. 3 Brev. 217; Zylstra v. Charleston, 1 Bay (S. C.), 382. If an appeal is given, that course is the proper one for the aggrieved party to pursue if he wishes a trial de novo, and, in general, he is entitled to a certiorari, if he has no other remedy, in order to review errors of law committed by the inferior jurisdiction. State v. Wakely, 2 Nott & McC. (S. C.) 410 (1820); State v. Cockrell, 2 Rich L. 6, per Evans, J.; McDonald v. Elfe, 1 Nott & McC. (S. C.) 501. A writ of prohibition will not lie to prevent the execution of a contract for a sidewalk. The remedy is by injunction; a writ of prohibition only lies to prevent making the contract. Bluffton v. Silver, 63 Ind. 262. 2 Mealing v. Augusta, Dud. (Ga.) 221 (1833). Where a city council is not a court, but is exercising the powers given to it as the governing body of the corpor ation, it is not such a tribunal as can, in the opinion of the Superior Court of Georgia, be reached by prohibition. Mealing v. Augusta, Dud. (Ga.) 221. Mealing v. Augusta, Dud. (Ga.) 221 (1833). Text approved, Bluffton v. Silver, 63 Ind. 262. In Smith v. Whitney, 116 U. S. 167 (1885), the nature of the writ of prohibition was very fully considered. Mr. Justice Gray, referring to the authorities, says: "Where the inferior court has clearly no jurisdiction of the suit or prosecution instituted before it, and the defendant therein has objected to its jurisdiction at the outset, and has no other remedy, he is entitled to a writ of prohibition as matter of right; and a refusal to grant it, where all the proceedings appear of record, may be reviewed on error. This is the clear result of the modern English decisions, in which the law concerning writs of prohibition has been more fully discussed and explained than in the older authorities." But in that case it was held that the writ of prohibition did not lie to the action of the Secretary of the Navy convening a courtmartial, nor to a court-martial to correct mistakes in the decision of questions of law and fact within its jurisdiction. Respecting the writ of prohibition and the practice under it. Mayo v. James, 12 Gratt. 17; Ellyson, In re, 20 Gratt. 10 (1870), where a writ of prohibition is distinguished from a writ of error; Culpeper Co. Sup. v. Gorrell, 20 Gratt. 484; 3 Black. Com. 112; 8 Bac. Abr. 206, title, Prohibition; 7 Com. Dig. 135, same title; Home v. Earl Camden, 2 H. Bl. 533; Gould v. Gapper, 5 East, 345; 1 Saund. 136, and notes; Williams, In re, 4 Ark. Remedy by Indictment. § 931 (745). In England. — It is a clear principle of the English law that all corporations, municipal as well as private, which owe duties to the public, are liable to indictment for malfeasance as well as nonfeasance in respect to such duties. The duty, however, must be one which is devolved on the corporation by prescription or by statute; it must be a duty or obligation of a public nature, and one, it is supposed by the author, mandatory in its nature, and not discretionary. This method of redress on the part of the public against municipal corporations is most frequently resorted to for their failure to maintain and repair bridges or highways, in compliance with a prescriptive duty or statutory requirement; but the principle is general in its character within the limits above stated.1 § 932 (746). In this Country. In this country the same principles have been recognized, and corporations are generally regarded as indictable for misfeasance, as well as nonfeasance, respecting duties of a public nature plainly enjoined by the legislature for the benefit of the public. The modern view is to assimilate corporations, as to their duties and responsibilities, so far as possible, to individuals. It is admitted that they cannot be indicted for felonies, but it is clear that they may be indicted for acts done to the injury and annoyance of the public, and which amount to a nuisance.2 537, and note, giving forms used in the proceeding; Arnold v. Shields, 5 Dana (Ky.), 18; Clayton v. Heidelberg, 9 Sm. & M. (17 Miss.) 623 (1848), where the office of the writ is discussed. Under the Constitution of South Carolina the Supreme Court of that State has no jurisdiction of an original application for a writ of prohibition to prevent a municipal corporation from issuing licenses. State v. Columbia, 16 S. C. 412. 1 Lyme Regis v. Henley, 3 B. & Ad. 77; s. c. 2 Clark & Fin. 331; Call. Sewers, 116, 117; Regina v. Ct. N. of E. Ry. Co., 9 Q. B. 315; Rex v. Stratford-upon-Avon Bor., 14 East, 348; Grant Corp. 283; Reg. v. Birmingham & Gl. Ry. Co., 9 Car. & P. 469; Rex v. Oxfordshire, 16 East, 223; 1 Kyd, 225, 226; 6 Maule & S. 365, note; ante, sec. 237, note; sec. 642, and notes. See Regina v. Nott, 4 Q. B. 773 ; Add. on Torts (Am. ed.), 274, 275, 889. Other mode of enforcing such duties, see chapter on Mandamus, ante. VOL. II.-31 Appearance is enforced by distress. Regina v. Birmingham & Gl. Ry. Co., 3 Q. B. 223. And, upon conviction, the corporation may be fined. Ib. Upon an indictment against a town for not making or repairing a highway, the town cannot object that the record of the laying out of the road shows that one of the landowners, over whose land the road was laid, was not notified. Such an objection should be made before the road was finally established. State v. Raymond, 27 N. H. 388 (1853). Notice, ante, sec. 606. 2 Commonwealth v. New Bedford Br. Prop., 2 Gray (Mass.), 339, and cases cited; Commonwealth v. Vt. & Mass. R. R. Corp. 4 Gray, 22 (1855); Sussex Co. Freeh. v. Strader, 18 N. J. L. 108. Approved : Cooley v. Essex Co. Freeh., 27 N. J. L. 415; State v. Morris & E. R. R. Co., 23 N. J. L. 360; State v. Hudson County, 30 N. J. L. 137 (1862), cited infra; State v. Vt. Cent. R. R. Co., 27 Vt. 103; Phillips v. Commonwealth, 44 Pa. St. 197; |