and subject matter, it must now be regarded as settled in this state, that it is the duty of the court, in addition thereto, to examine the evidence and determine whether there was any competent proof of the facts necessary to authorize the adjudication made, and whether, in making it, any rule of law affecting the rights of the parties has been violated": People v. Smith, 45 N. Y. 773, 776.

Discretion Cannot be Reviewed.-As is well known when a court is invested with the exercise of a discretionary power or authority, such discretion, while not altogether free from review in an appellate tribunal, is not subject to such review to the same extent nor in the same sense as are errors of law. On the contrary the discretion confided to the court is not reviewable on appeal or otherwise except to correct what might properly be deemed a clear and manifest abuse thereof. With respect to proceedings by certiorari there is no doubt that the fact that an act is discretionary and that in the exercise of the discretion, judgment must be employed, does not prove that it is judicial and therefore subject to review: People v. Walter, 68 N. Y. 403; People v. Board of Commrs., 97 N. Y. 37; People v. Kelly, 24 N. Y. 74; and even when the act is conceded to be judicial or quasi judicial, if it was also discretionary, it cannot be reviewed or set aside on certiorari, for at most, the action complained of is a mere error of judgment, and not a violation of any established rule of law, statutory or otherwise: Commissioners v. Kane, 2 Jones, 288; Ketchum v. Superior Court, 65 Cal. 494; Tiedt v. Carstensen, 61 Iowa, 334; State v. Busby, 44 N. J. L. 627; Livingston v. Rector of Trinity Church, 45 N. J. L. 230, 238.

Questions of Fact are rarely, if ever, reviewable upon certiorari. Even where this writ has the effect of a writ of error or appeal and brings before the super or court the evidence upon which the action or judgment of the inferior court or tribunal was based, the rules applicable to other appellate proceedings prevail, and the decision of the judge, jury, or other tribunal upon any question of fact respecting which the evidence was conflicting will not be disturbed: Rawson v. McElvaine, 49 Mich. 194; Town of Camden v. Bloch, 65 Ala. 236. "The writ of certiorari lies only to correct errors of law, and not to revise the decision of a question of fact upon evidence introduced at the hearing in the inferior court or to examine the sufficiency of the evidence to support the finding, unless objection was taken to the evidence for incompetency so as to raise a legal question": Farmington etc. Co. v. County Commrs., 112 Mass. 206, 212; Nightingale's case, 11 Pick. 168. As is the case in other appellate proceedings, the mere erroneous reception or rejection of evidence does not necessarily entitle a complaining litigant to a reversion or vacation of the judgment, but the whole record will be examined, and if, considered as a whole, it does not appear therefrom that substantial justice was not done him, the assailed proceeding will be sustained, though some errors occurred during its progress: Cobb v. Lucas, 15 Pick. 1; Gleason v. Sloper, 24 Pick. 181. "The office of the common law certiorari has been very much enlarged by the later decisions in this state, but there is no authority holding that questions of fact from conflicting evidence or conflicting inferences which may be drawn from facts or matters of judgment or discretion in the case justifying their exercise can be reviewed. Only errors of law affecting materially the rights of the parties may be corrected and the evidence may be examined in order to determine whether there is any competent proof to justify an adjudication made": People v. Board of Police, 69 N. Y. 408, 411; People v. Board of Police etc., 39 N. Y. 506; People v. Board of Police etc., 72 N. Y. 417; State v. Whitford, 54 Wis

150. It is a fair summary of the decisions upon this topic to say that in those states in which the evidence may be brought before the superior court upon certiorari that court may examine it, not for the purpose of determining the credibility of witnesses or the weight to be given conflicting testimony, but solely for the purpose of determining whether, from competent evidence before it, the decision of the inferior court is sustainable, and, if so, such decision cannot be set aside as against or not supported by the evidence, and, on the other hand, if there was no competent evidence to sustain such decision, it must be annulled: State v. Duluth, 53 Minn. 238; 39 Am. St. Rep. 595; Callon v. Sternberg, 38 Wis. 539; Jackson v. People, 9 Mich. 111; 77 Am. Dec. 491; note to Duggen v. McGruder, 12 Am. Dec. 533; Keenan ▼. Goodwin, 17 R. I. 649; Commonwealth v. Gillespie, 146 Pa. 546; State v. Mayor of Hudson, 32 N. J. L. 365, 367; Conover v. Davis, 48 N. J. L. 112; State v. Bill, 13 Ired. 373.

Extrinsic Evidence-The Questions Must Arise on the Record. —No questions can be presented for review upon certiorari other than those which arise on the record, save and except that the court may sometimes hear evidence in support of the record for the purpose of showing that substantial justice has been done, or that for some reason the discretion which the court has to deny relief by this writ ought to be exercised and the petitioner left to such other means of redress as he may have, but it is clear in the absence of statutory authority, that the record cannot be contradicted by extrinsic evidence, and that the petitioner's cause must be determined on the record alone: Richardson v. Smith, 59 N. H. 517; Alexander v. Archer, 21 Nev. 22; North v. Joslin, 59 Mich. 624; Matthews v. Otsego County, 48 Mich. 587; In re McCandless Turnpike Road, 110 Pa. St. 605; Deer v. Commrs. of Highways, 109 Ill. 379; Hyslop v. Finch, 99 Ill. 171; Ex parte Madison Tp. Co., 62 Ala. 93; Camden v. Bloch, 65 Ala. 236; Dicus v. Bright, 23 Ark. 107; Brown v. Roberts, 23 Ill. App. 461; Commissioners of Highways v. Newby, 34 Ill. App. 378; State v. New Orleans Judge, 36 La. Ann. 977; De Pedrorena v. Superior Court, 80 Cal. 144; Case v. Frey, 24 Mich. 251; Mendon v. Worcester, 5 Allen, 13; Bradford v. Goshen, 57 Pa. St. 495; note to Morrill v. Morrill, 23 Am. St. Rep. 108. In other words, the record imports absolute verity when the proceeding is assailed by certiorari: Note to Morrill v. Morrill, 23 Am. St. Rep. 108; In re Dance, 2 N. Dak. 184; 33 Am. St. Rep. 768.

There may be embarrassment in determining what the record is, and doubtless the statutes in many of the states have enacted conflicting rules apon this subject, but it is one which does not permit of any extended examination in this note. If the court to which the writ issues is a court of record, there can be but little difficulty in determining what documents or other papers constitute its record; and these only can be considered, though other matters are disclosed by the return. If the evidence received has not been preserved in such a manner as to constitute a part of the record in the lower court, it must be excluded from consideration in the superior court, though the judge or some other officer has certified to it, and thus attempted to make it a part of the return to the writ. In the great majority of cases in which redress is sought by this writ it is directed to inferior courts or tribunals exercising a limited or summary jurisdiction having no record. In such cases perhaps the most usual practice is to require such court or tribunal, by its clerk or otherwise, to certify the proceedings taken before it and its action thereon, as well as to furnish copies of such petitions and other papers as have been presented to it and made a basis of its right to act, together with a statement of its rulings upon any point in

which it is claimed to have acted erroneously to the prejudice of the applicant: Farmington etc. Co. v. County Commrs., 112 Mass. 206.

In a few of the states the remedy by certiorari is restricted to questions of jurisdiction only, and the writ must be denied in every case unless the proceeding, judgment, or order sought to be reviewed or some part of it, was beyond the jurisdiction of the court or other judicial tribunal. In other words, a decision upon certiorari in favor of the applicant amounts only to a judicial declaration that some action taken in an inferior court or tribunal was absolutely void, and therefore might have been disregarded with impunity, even if its validity had never been assailed by this writ: Reagan v. Justice's Court, 75 Cal. 254; Weimmer v. Sutherland, 74 Cal. 341; Phillips v. Welch, 12 Nev. 158; State v. Judge of Twenty-first Judicial District, 45 La. Ann. 950; State v. Koenig, 39 La. Ann. 776; State v. Riley, 43 La. Ann. 177. In Wisconsin, when the writ issues to review the proceedings of a court, the only question examinable is in respect to its jurisdiction, but "it is otherwise when it issues to review the proceedings of officers and bodies not proceeding according to the course of the common law": State v. Circuit Court, 71 Wis. 595.

Contempt Cases. -The rule that on certiorari no question can be considered but the jurisdiction of the court is almost universally applicable to proceedings seeking to assail judgments inflicting punishment for alleged contempts of court. The general rule is that these judgments are not subject to review on appeal or writ of error. They may, however, be brought before a superior court by certiorari: Lindsay v. District Court of Clayton County, 75 Iowa, 509; Ex parte Biggs, 64 N. C. 202; Young v. Cannon, 2 Utah, 560; Harrison v. State, 35 Ark. 458; Hummel's case, 9 Watts, 416; People v. Kelly, 24 N. Y. 74; but the court does not inquire whether they are erroneous merely, but whether they are void. In other words, the only question is, Had the court jurisdiction to render the judgment assailed? Vanvabry v. Staton, 88 Tenn. 334; State v. Galloway, 5 Cold. 326; 98 Am. Dec. 404; State v. Monroe, 41 La. Ann. 314; note to Mullin v. People, 22 Am. St. Rep. 420; Maxwell v. Rives, 11 Nev. 213; Ex parte Smith, 53 Cal. 204; Phillips v. Welch, 12 Nev. 158; '76 Land etc. Co. v. Fresno County Superior Court, 93 Cal. 139. The case must, therefore, be heard upon the record alone, but if it appears therefrom that the acts of which the applicant was found guilty were lawful and proper under the circumstances, and could not constitute a contempt of court, or that the punishment inflicted was in excess of that which the court had power to impose, then the judgment may be annulled: In re MacKnight, 11 Mont. 126; 28 Am. St. Rep. 451; In re Shortridge, 99 Cal. 526; 37 Am. St. Rep. 78. In a few of the states certiorari to a judgment punishing an alleged contempt of court is not restricted to mere questions of jurisdiction, but may review errors of law appearing from the record: Ex parte Biggs, 64 N. C. 202; Commonwealth v. Newton, 1 Grant Cas. 453; Dunham v. State, 6 Iowa, 254; or grant a reversal for a clear abuse of discretion: Harrison v. State, 35 Ark. 458.

What Questions are Judicial.—As already suggested, the authorities agree that certiorari does not lie to review or annul any judgment or proceeding which is not judicial in its nature, but with respect to various proceedings there is room for great difference of opinion as to whether they are judicial or not. If they are either legislative or executive, they are beyond the reach of this writ: People v. St. Lawrence County Superior Court, 25 Hun, 131; Re Wilson, 32 Minn. 145; Spring Valley Water Works v. Bryant, 52 Cal. 132; Iske v. Newton, 54 Iowa, 586. While the functions of the three great depart

ments of government are in most respects sufficiently dissimilar to avoid confusion as to the duties and powers resting upon each, it must be confessed that there are duties which are ordinarily committed to the legislative or executive departments that might properly be committed to the judicial, and there are subordinate tribunals which may be authorized to perform both legislative and judicial functions, and, as to an act of a tribunal possessing both legislative and judicial functions, it may not be possible to formulate any test of general acceptability by which to determine when the action is judicial, and therefore reviewable on certiorari, or is legislative, and therefore beyond the supervising power or control of the courts. Thus the power to remove officers is ordinarily devolved upon the executive, and when such is the case is properly classed as an executive function. The power of granting divorces, authorizing the sale of the property of infants or insane persons, or the adoption and legitimation of children, and the like, may be exercised by the legislature without any judicial inquiry or determination as to the necessity or propriety of the divorce, sale, adoption, or legitimation, and when such is the case is doubtless a legislative power. If, on the other hand, some law directs that officers may be removed for cause, or that the lands of infants or insane persons shall be sold when necessary for their support or education, or to otherwise promote their interests, or that children may be adopted when their welfare will be advanced thereby, and if the law further provides that some court, tribunal, or person shall have power to decide these questions, and that such decision shall not be given until the party to be affected thereby has had notice of the proposed proceeding and an opportunity to be heard with respect thereto, then it seems to us that the examination, hearing, and decision to be thereon made are judicial in character and consequence, and therefore subject to annulment, and to some extent, to review by the superior courts. This view, as we understand it, is sustained by the decisions in State v. Graham, 60 Wis. 395; People v. Jones, 112 N. Y. 608; and also by the following language from the opinion of the court in Home Ins. Co. v. Flint, 13 Minn. 247: "A judicial investigation proceeds after notice and eventuates in a judgment which is the final determination of the rights of the parties unless reversed by an appellate tribunal. The necessity of notice in the inception and the conclusive character of the determination are perhaps as good a test as any other as to what proceedings are judicial."

In the principal case the subject matter of the action by the board of supervisors related to the opening and extending of a public street, and there is no doubt that the legislature might have directly authorized such opening and extension, or have delegated the duty or power to authorize it to a subordinate legislative body, and without requiring it to have given any person affected any hearing whatever. In either event, the action would have been legislative in character, and not reviewable on certiorari. But what the law under consideration actually did was to require the supervisors to give notice of their intention to proceed and to accord a hearing to any or all persons interested, and it could not seriously be contended that any action taken without giving this notice would be of any validity whatever. Furthermore, the final action of the supervisors under the statute in question fixed the amount chargeable against each parcel of realty for the expenses of the proposed improvement; and this the legislature could not directly do. Our contention is, that an action is necessarily judicial if the parties to be affected thereby have a right both to notice of the proceeding and to a hearing in opposition to it, before some tribunal which is not other.

wise authorized to proceed, especially if the result of such action is to establish a liability against person or property; and if such contention is well founded, the court was mistaken in so far as it affirmed that the proceeding was purely legislative, and therefore not reviewable on certiorari. The opinion, taken as a whole, is difficult to understand; for, while it asserts that the action of the board of supervisors was legislative, and not reviewable by the courts, it dwells upon the fact that the notice given was such as was prescribed by statute, and was sufficient to constitute due process of law in the class of cases to which it was applied, and what the court might have meant to affirm may have been that jurisdiction being acquired in the mode prescribed by law, the subsequent determination as to the propriety of proceeding with the contemplated improvement, and the designation of the boundaries of the district to be chargeable therefor, were legislative in character, and therefore not subject to review.

When an act is sought to be reviewed on certiorari, and is claimed to be exempt from such review because it is of a legislative, or, at least, that it is not of a judicial, character, resort is frequently had to definitions formulated for the purpose of creating some test by which this vexed question can be determined. Of these definitions, perhaps, none is more terse and satisfactory than the following by Judge Field: "The distinction between a legislative act and a judicial act is well defined. The one determines what the law is, and what the rights of the parties are, with reference to transactions already had; the other prescribes what the law should be in future cases arising out of it. Wherever an act undertakes to determine a question of right or obligation, or of property, as the foundation upon which it proceeds, such act is to that extent a judicial one, and not the proper exercise of legislative functions": Sinking Fund cases, 99 U. S. 761.

Boards of Supervisors and Common Councils of Municipalities.-The chief contention respecting the office of the writ of certiorari has arisen when it was sought as a means of reviewing or annulling the proceedings of the common councils of towns or cities, or of the boards of supervisors and like tribunals exercising legislative, administrative, and judicial functions in the government of counties. We do not doubt that there are indefensible decisions on both sides of this question; some that have sustained the writ when the act reviewed was clearly administrative or legislative in character and consequence, involving neither judicial inquiry nor decision; and others, like the principal case, that have questioned the writ when the proceeding was required to be instituted by notice to all the parties to be affected thereby who were entitled to be heard in opposition thereto, and in the event of such opposition being overruled, a charge was imposed upon their property as the ultimate result of the proceeding, and the precise amount due from each parcel so fixed that it could not be the subject of further inquiry, judicial or otherwise. If an ordinance enacted or an act done by such a board is one which the legislature might have enacted or done directly without any judicial or quasi judicial inquiry or determination, then it is not judicial in character, and not reviewable on certiorari, unless, perhaps, when the legislature has expressly or impliedly prescribed that some investigation shall be conducted, and some determination made, and secured to the parties interested a right to be heard before the determination shall be made. Hence the courts will not review the action of a board of supervisors in adopting a resolution providing for the repair of certain public highways: People v. Queens County Superior Court, 131 N. Y. 468; or consenting to or contracting for the construction of a bridge: People v. New York Park Commrs..