Town of Camden v. Bloch

SOMERVILLE, J. — The supervisory power of a superior over an inferior legal tribunal, by means of a common-law writ of certiorari, extends only to questions touching the jurisdiction of the subordinate tribunal, and the regularity of its proceedings. The appropriate office of the writ is to correct errors of lato, apparent on the face of the record. Conclusions of fact can not be reviwed, unless specially authorized by the statute. The trial is not de novo, but on the record; and the only matter to be determined is the quashing, or the affirmation, of the proceedings brought up for review. — Dean v. State, 63 Ala. 153; Ex parte Madison Turnpike Co., 62 Ala. 93; Andrews v. Andrews, 14 N. J. (Law) 141. And it has been held, that the validity of acts of municipal cor [240] porations, and special tribunals, may be tested by certiorari, whether such acts are judicial or legislative.— Camden v. Mulford, 26 N. J. (Law) 49_ _ The charter of the town of Camden, as found in the Acts of 1857-58, p. 225, provides for no appeal from proceedings before the intendant, and hence this remedy was the appropriate one, and was properly resorted to by the appellee, for the purpose of having such proceedings subjected to revision by the Circuit Court. — Dean v. State, supra; City Council of Montgomery v. Foster, 54 Ala. 62. The omission of the affidavit and warrant from the record under-which Bloch, the appellee, was arrested and tried before the intendant, was a defect, for which a motion to quash would properly lie. The record could not be aided or supplemented by extrinsic parol evidence. The pleas filed by appellant to this motion raised the question as to the proper method of perfecting the record, so as to introduce this affidavit and warrant, which were alleged to have been mislaid or lost in the intendant’s court. The power of courts to substitute or supply their own lost or destroyed records is inherent, and exists independently of any statute, being requisite in order to “ minister ample justice to all persons according to law. ” This right exists, however, only in the court whose record or papers it is proposed to restore. There was no error in the refusal of the Circuit Court to substitute the lost papers. The proper practice would have been, to have the defect corrected, on motion after reasonable notice, in the primary court, and then to apply for a special certiorari to the Circuit Court, alleging the particular matter proposed to be incorporated in the record. The case should then have been continued, within the discretion of the circuit judge, until reasonable time was afforded to enable the intendant to make his return to the writ. — Townsend v. Jeffries Adm’r, 24 Ala. 224; Drake and Wife v. Johnson & Seats, 50 Ala. 1; Freeman on Judgments, p. 81, § 89. We can not see, from the transcript of the cause, that exactly this course was proposed to be pursued; nor, had it been otherwise, was the failure of the Circuit Court to continue revisable error. Applications for continuance are' addressed to the sound discretion of the primary court, and are not the subject of revision in the appellate court. — 1 Brick. Dig. p. 774, § 2. The rulings of the Circuit Court on the demurrer are not in conflict with these principles, and are sustained. The lower court erred, however, in taxing the appellant with the costs and the record shows there was a sufficient objection to this, on the part of the appellant. No motion [241] was necessary to have the judgment entered without costs, as the judgment-entry shows a specific exception to such taxation. It has been correctly held by this court, that municipal corporations are not, on grounds of public policy, liable for costs accruing in cases of this character. Such municipalities are subdidisions of the political organization of the State, and the proceedings in question were designed for the preservation of the public peace. — City Council of Montgomery v. Foster, 54 Ala. 62. It is objected by the appellee’s counsel that, as the State is denied the right of appeal in criminal prosecutions by statute, the same rule ought to apply to municipal corporations. This is only a qwasi-criminal case, and the appellant here is not the State. The practice in this court has uniformly permitted such appeals, and we are not disposed to disturb it. — Intendant and Council of Marion v. Chandler, 6 Ala. 899; City Council of Montgomery v. Foster, 54 Ala. 62. The judgment is reversed, and the cause remanded.