Gaither v. Watkins

Robinson, J., delivered the opinion of the Court. The writ of certiorari was properly quashed in this case. In the first place, the clerk had no right to issue it without the order of the Court. It is a mistake to suppose, that the appellant was entitled to the writ as matter of right.

On the contrary, a party was not entitled to it hy the common law, even in criminal cases, except for good and sufficient reasons. Thus we find it laid down in Bacon’s Abr., “that although the writ ought to be issued at the instance of the King for the purpose of removing an indictment, yet the Court has a discretionary power of granting or refusing it at the suit of the defendant.” Title Certiorari. And in King vs. Eaton, 2 Term Rep., 89, Buller, J., said, “'that the rule requiring the defendant to lay a ground before the Court for granting a certiorari had obtained since the time of Charles Second.” Again, in Arthur vs. Commissioners of Sewers in Yorkshire, 8 Mod., 331, it was remarked by one of the Judges, “that the ⁵⁸⁰ writ of certiorari was not a writ of right, for if it was, it could never he denied to grant it, hut it hath often been denied by this Court, who may deny it, or grant it, at discretion.” And in regard to proceedings strictly speaking riot criminal, as for instance, to remove a poor’s rate, or the assessment of the land tax, or proceedings before the Commissioners of Sewers, the writ was refused on grounds of public inconvenience. Rex vs. Uttoxeter, 2 Str., 932; Rex vs. King, et al., 2 Term Rep., 234; Rex vs. Com’s, 1 Str., 609.

Not being then a writ of right, hut one granted by the Court for cause shown, the clerk, it is clear, has no power to issue it without the order of the Court. Besides this, there is nothing on the face of the proceedings brought up by the certiorari to support the writ. The County Commissioners have exclusive jurisdiction in regard to the opening of public roads. Parties intending to make application to them for this purpose are required to give thirty days notice by publication in a newspaper, and upon such notice and application, the Commissioners may, if they deem it expedient, appoint persons to examine the premises and to determine whether in their judgment the public convenience requires the road to be opened.

And any one aggrieved by the action of the Commissioners has the right of appeal to the Circuit Court. Now, it was argued, that a certiorari ought not to issue in any case where a party has a remedy by appeal or by writ of error. We are not prepared to go to this extent. This much, however, we may say, that as it is a matter resting in the legal discretion of the Court, the writ ought not to he granted in any case, where the party has a right of appeal, except for the purpose of testing the jurisdiction of the tribunal below.

In Rex v. Whitbread, 2 Doug., 549 , Lord Mansfield said, “ We are all of opinion, that in this case a certiorari does not lie. But if it did, it must ⁵⁸¹ be granted upon cause shown, and as the affidavits in support of the