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of certiorari was abolished in 1868.
Stat. 1901, § 5050; Gen. Stat. 1868, c. 80, §
564. It was a writ well known to the com-
mon law. It issued out of some superior
court having the full judicial power of the
state directing some inferior court to certify
and transmit to it the records and proceed
ings of a particular case for trial or correc-
tion of errors. It is still used in the fed-
eral courts and in the older states. But our
Legislature which abolished the writ in 1868
had undoubted power to re-establish it in
1915. The name and style of the writ is un-
important. Long ago this court, in conform
ity to the temper of this state, established
the doctrine that the substance and not the
form of things is the chief object in the ad-
ministration of justice. Moreover, an ex-
amination of the law of other states will
show that the modern notice of certiorari is
not confined to a judicial examination or re-
view of a certified case from a lower court.
It is used to effectuate a judicial review or
give a judicial right of action from the acts'
or proceedings of any inferior tribunal-not
necessarily from an inferior court. 6 Cyc.
740, and note 10; 6 Cyc. 752. This last
tation appends a valuable note:

Gen., single joint board upon a petition presented to them for the removal of said Crawford from the office of director of" a school district "which embraces a part of each township." We only cite this case to show how the uses of certiorari have been enlarged in its progress from the land and time of Lord Coke to the land and time of Judge Cooley.

It will thus be seen that in practical operation in modern times, cither by statute or by Judicial enlargement of its use, certiorari will lie not alone to an inferior court, but to statutory boards and officers. And surely the Legislature, which has full power to prescribe jurisdiction and procedure, may grant a judicial review or a cause of action from the acts of the secretary of the state board of agriculture, and in so doing the Legis lature may label that review or cause of action certiorari or give it any other convenfent name. In Wilson v. Price-Raid Aud. Com., 31 Kan. 257, 259, 1 Pac. 587, this court said:

"The jurisdiction of the Supreme Court is much more limited by the Constitution than that of the district court, for ruder the Constitution, the Legislature can confer upon the ci-district court all the original and all the appellate jurisdiction which it may choose. Const. art. 3, § 6. It may confer upon the district "The writ will lie to review the action of a court jurisdiction in any matters of a judicial town board in removing an assessor (Merrick v. character, without reference to where such matArbela, 41 Mich. G30, 2 N. W. 922); of a health ters may originate, for if the district court does board in refusing to register births as required not take jurisdiction of such matters under or by statute (Matter of Lauterjung. 48 N. Y. by virtue of its appellate jurisdiction, it may Super. Ct. 308); of a board of supervisors in take jurisdiction of the same under or by victue directing an election to relocate a county seat of its original jurisdiction. Any matter judicial (Herrick v. Carpenter, 54 Iowa, 340, 6 N. W. in its character can be taken from even a road 574) in creating an office and increasing the overseer to the district court, provided the statsalaries fixed by statute (Robinson v. Sacramen-nies authorize the same, for when the mater to. 16 Cal. 208); or to set aside any wrongful, gets into the district court the district court can illegal, or fraudulent appropriation of public exercise jurisdiction over it as a court of origi moneys (Shields v. Paterson, 55 N. J. Law, nal jurisdiction." 495. 27 Atl. 803 [followed in Shields v. Grear, 55 N. J. Law, 503, 27 Atl. 807]); of a city council in removing a city oflicer (Macon v. Shaw, 16 Ga. 172); granting a ferry license (Fay, Petitioner, 15 Pick. [Mass.] 2); or to test the lawfulness of a municipal ordinance providing for the payment of an official salary (Christie v. Bayonne, 64 N. J. Law, 191, 44 Atl. 887), and of school trustees in uniting and dividing school districts (Miller v. School Trustees, SS Ill. 26: State v. Whitford, 54 Wis. 150, 11 N. W. 424); but it has been refused to boards of election (Ex parte Carson. 5 S. C. 117), and of road commissioners (Nobles v. Piollet, 16 l'ac. 386), because they were not inferior courts."

In Crawford v. Scio and Webster, 22 Mich. 405, a writ of certiorari was issued "to bring up for review the proceedings of the boards of the two townships, sitting as a

What court may issue the writ? The district court to be sure. court of general jurisdiction. It holds pracThat is our only tically all the judicial power of the state. It was no more necessary for the statute to designate the court from which the writ might issue than it is in any other regalatory or penal law or in any other act giving statutory rights of legal redress.

It will thus be seen that whatever may be the demerits of the act, it is free from constitutional infirmities and must stand as a valid statute. As such it should be respected and enforced, and the state is entitled to judgment.

The writ is allowed.

Robert Lee GOLDSBY



No. 39739.

(Cite as 86 So. 2d 27)

Supreme Court of Mississippl. March 5, 1956.

Petition for a writ of error coram nobis by the petitioner who previously had been convicted of murder. From a judgment denying the petition in the Circuit Court, Carroll County, Henry Lee Rodgers, J., the petitioner appeals. The Supreme Court, Hall, J., held that motion for the writ for newly discovered evidence was properly denied, that the record failed to establish a denial of federal constitutional rights on ground of exclusion of Negroes from jury service and that where the question of denial of constitutional rights was not raised in the lower court nor in the Supreme Court on appeal on the merits, the raising of the question by petition for writ of error coram nobis was too late.

Petition denied.

1. Criminal Law 997(15)

To justify a writ of error coram nobis on the ground of newly discovered evidence, burden of proof is on the petitioner.

2. Criminal Law 997(8)

Writ of error coram nobis will not lie for newly discovered evidence going to the merits of the issues tried in the court below.

3. Criminal Law


In murder prosecution, evidence did not justify grant of writ of error coram nobis on the ground of newly discovered evidence, that husband of decedent stated after the shooting that he had shot the decedent while attempting to shoot the defendant.

4. Criminal Law 304(1)

The Supreme Court cannot take judicial notice of something as to which there is no proof.

5. Criminal Law 997(15)

In murder prosecution, record did not indicate that defendant's constitutional rights were violated on the ground that the defendant was a member of the Negro race and that in county where he was tried Negroes were systematically excluded from jury service.

6. Criminal Law 1192

In murder prosecution, where Negro defendant on appeal to the United States Supreme Court raised the question that his constitutional rights had been denied, because Negroes had been systematically excluded from jury service and the Supreme Court denied certiorari, judgment of that court was res judicata and that question could not again be raised in the state court.

7. Criminal Law 637

In murder prosecution, that defendant was confined in jail at Louisville and not at Vaiden the county seat where the defendant was tried was not error where there was no jail in Vaiden and no place where the defendant could have been incarcerated.

Code 1942, § 2499.

8. Constitutional Law 43(1)

In cases involving federal constitutional questions, it is not necessary that motions raising the questions be made before the return of the indictment where accused has been denied a reasonable opportunity for doing so.

9. Criminal Law


Where contention that there was a denial of constitutional rights of Negro defendant by systematic exclusion of Negroes from jury service was not raised in the lower court nor in the Supreme Court on appeal on the merits, raising of the question by petition for writ of error coram nobis came too late.



1. "Catholic Bishops Speak on Racial Discrimination and the Moral Law." Statement of principles and objectives, Catholic Interracial Council of Chicago, and signed by NCWC, November 14, 1958.

2. "Churches and Segregation," adopted by the General Assembly of the National

Council of the Churches of Christ in the U.S.A., December 5, 1957.

3. "Methodist Resolution on Intergration," by the Council of Methodist Bishops;

"The Methodist Social Creed," adopted by the General Conference, 1956.

4. "A Message on Race Relationships," adopted by Board of Social and Economic Relation of Methodist Church, January 14, 1955. Prompted by recent de

cision of the Supreme Court.

5. "The Bible Speaks on Race," Board of Social Economic Relations of the Methodist Church, adopted September 26, 1957.

6. "Just Right and Necessary," a study of reactions to the Supreme Court decision on segregation with a statement of guiding principles, policies, and practical suggestions. The National Council, Episcopal Church, 281 Fourth Avenue, New York, N.Y.

7. The Convention and Triennial Daily, “Resolution on Race Is Voted by Bishops," October 11, 1958, volume 1, No. 6, page 2 (news story).

8. "The Lambeth Conference 1958." The encyclical letter from the bishops together with the resolutions and reports, Seabury Press, 1958, pages 1-55 and 1-56.

(The statements listed above are as follows:)


Statement of Principles and Objectives, Catholic Interracial Council of Chicago DISCRIMINATION AND THE CHRISTIAN CONSCIENCE

Fifteen years ago, when this Nation was devoting its energies to a World War designed to maintain human freedom, the Catholic bishops of the United States issued a prayerful warning to their fellow citizens. We called for the extension of full freedom within the confines of our beloved country. Specifically, we noted the problems faced by Negroes in obtaining the rights that are theirs as Americans.

The statement of 1943 said in part:

"In the providence of God there are among us millions of fellow citizens of the Negro race. We owe to these fellow citizens, who have contributed so largely to the development of our country, and for whose welfare history imposes on us a special obligation of justice, to see that they have in fact the rights which are given them in our Constitution. This means not only political equality, but also fair economic and educational opportunities, a just share in public welfare projects, good housing without exploitation, and a full chance for the social advancement of their race."

In the intervening years, considerable progress was made in achieving these goals. The Negro race, brought to this country in slavery, continued its quiet but determined march toward the goal of equal rights and equal opportunity. During and after the Second World War, great and even spectacular advances were made in the obtaining of voting rights, good education, better paying jobs, and adequate housing. Through the efforts of men of good will, of every race and creed and from all parts of the Nation the barriers of prejudice and discrimination were slowly but inevitably eroded.

Because this method of quiet conciliation produced such excellent results, we have preferred the path of action to that of exhortation. Unfortunately, however, it appears that in recent years the issues have become confused and the march toward justice and equality has been slowed, if not halted, in some areas. The transcendent moral issues involved have become obscured, and possibly forgotten.

Our Nation now stands divided by the problem of compulsory segregation of the races and the opposing demand for racial justice. No region of our land is immune from strife and division resulting from this problem. In one area the key issue may concern the schools. In another it may be conflicts over housing. Job discrimination may be the focal point in still other sectors. But all these issues have one main point in common. They reflect the determination of our Negro people, and we hope the overwhelming majority of our white citizens, to see that our colored citizens obtain their full rights as given to them by God, the Creator of all, and guaranteed by the democratic traditions of our Nation.

There are many facets to the problems raised by the quest for racial justice. There are issues of law, of history, of economics, and of sociology. There are questions of procedure and technique. There are conflicts in cultures. Volumes have been written on each of these phases. Their importance we do not deny. But the time has come, in our considered and prayerful judgment, to cut through the maze of secondary or less essential issues and to come to the heart of the problem.

The heart of the race question is moral and religious. It concerns the rights of man and our attitude toward our fellow man. If our attitude is governed by the great Christian law of love of neighbor and respect for his rights, then we can work out harmoniously the techniques for making legal, educational, economic, and social adjustments. But if our hearts are poisoned by hatred, or even indifference toward the welfare and rights of our fellow men, then our Nation faces a grave internal crisis.

No one who bears the name of Christian can deny the universal love of God for all mankind. When Our Lord and Savior, Jesus Christ, "took on the form of man" (Philippians 2:7) and walked among men, He taught as the first two laws of life the love of God and the love of fellow man. "By this shall all men know that you are My disciples, that you have love, one for the other" (John 13: 35), He offered His life in sacrifice for all mankind. His parting mandate to His followers was to "teach all nations" Matthew 28: 19).

Our Christian faith is of its nature universal. It knows not the distinctions of race, color, or nationhood. The missionaries of the church have spread throughout the world, visiting with equal impartiality nations such as China and India, whose ancient cultures antedate the coming of the Savior, and the primitive tribes of the Americas. The love of Christ, and the love of the Christian, knows no bounds. In the words of Pope Piux XII, addressed to American Negro publishers 12 years ago, “All men are brothered in Jesus Christ; for He, though God, became also man, became a member of the human family, a brother of all" (May 27, 1946).

Even those who do not accept our Christian tradition should at least acknowledge that God has implanted in the souls of all men some knowledge of the natural moral law and a respect for its teachings. Reason alone taught philosophers through the ages respect for the sacred dignity of each human being and the fundamental rights of man. Every man has an equal right to life, to justice before the law, to marry and rear a family under human conditions, and to an equitable opportunity to use the goods of this earth for his needs and those of his family.

From these solemn truths, there follow certain conclusions vital for a proper approach to the problems that trouble us today. First, we must repeat the principle-embodied in our Declaration of Independence that all men are equal in the sight of God. By equal we mean that they are created by God and redeemed by His Divine Son, that they are bound by His law, and that God desires them as His friends in the eternity of Heaven. This fact confers upon all men human dignity and human rights.

Men are unequal in talent and achievement. They differ in culture and personal characteristics.

Some are saintly; some seem to be evil; most are men of good will, though beset with human fraility. On the basis of personal differences we may distinguish among our fellow men, remembering always the admonition: “Let him who

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