Baltimore & Havre-de-Grace Turnpike Co. v. Northern Central Railway Co.

Tuck, J., delivered the opinion-of this court. W hether an appeal lies in cases of certiorari may depend on the nature of the proceedings, and the object for which that remedy may have been invoked. Where, as in the case of Crockett vs. Parke, 7 Gill, 237 , the court on the return of the writ is called upon to exercise a quasi appellate power in examining the proceedings of an inferior jurisdiction, which has authority to act in the premises, the judgment is final, and no appeal lies to this court. But where, as in Swann vs. Mayor & C. C. of Cumberland, 8 Gill, 150 , the writ is sued out to test the power and jurisdiction of the inferior authority to act at all in the matter, the court to which the process is returned acts in its ordinary common law capacity.

The proceeding is not limited or special, in the sense in which these terms are generally employed, nor appellate, but according to the course of the common law, and an appeal will lie. This we take to be the distinction between these cases, and if they cannot be so reconciled, the latter must be regarded as overruling the former, Crockett vs. Parke originated in a proceeding for a forcible entry and detainer in which justices of the peace are clothed with jurisdiction to be exercised in the manner prescribed by law. In the other case the corporate authorities of Cumberland sought to levy taxes for improvements under an ordinance which they had no power to pass, and which, therefore, conferred no authority on the commissioners to improve the street in the manner attempted by them. In the first case the appeal was dismissed; in the other it was entertained, the judgment below reversed, and the proceedings of the authorities of Cumberland quashed.

This case, therefore, would be an authority for our considering the questions presented by the record, were it not for a well settled doctrine of this court, that where the circuit court is ¹⁹⁸ clothed with a special