In re Lantis

Manning J.: The motion to quash the writ must be granted. No certiorari is given by the statute authorizing the proceedings of the commissioners, and at common law the writ is not one of right, but rests in the sound discretion of the court, to be allowed or not, as may best promote the ends of justice: — The People v. Supervisors of Allegany, 15 Wend. 198; 2 Hill, 9. The report of the commissioners was confirmed on the 26th September, 1859, and the writ was not sued out by the relators until the 23d August, 1860, eleven months thereafter. They appeared and opposed the confirmation of the report in the Circuit Court, and if they intended after failing there to bring the case to this Court for review, they should not in justice to the commissioners, the contractors and tax collectors, have lain by until the work was done and the taxes were levied and collected, as under the law and in the natural course of events they would be, and we are bound to suppose were, before appealing to this Court for relief. They shofild not by this apparent acquiescence on their part for so long a time in the action of the Circuit Court be permitted to reap, as its fruit," the benefit of what was afterwards done, without contributing towards the expense. Non constat that the contractors would have proceeded with the work, or that the taxes would have been levied and collected before the legality of the proceedings had been tested, had the writ been sued out within a reasonable time after the confirmation of the commissioner’s report. For these reasons, without intending to lay down any general rule further than what is necessary to dispose of the present motion, we think the writ was improvidently allowed, on account of the laches of the relator in not suing it out at an earlier day, and that it should for that cause now be quashed. The statutory provisions requiring the writ to be issued within two years, and providing for its allowance out of [326] court, were not intended to, and do not, take away the discretionary power of the court. The first is a limitation on its powers; and the other 'provision was only intended to do away with the necessity of a special application to the court for the writ, which would have to be pnade when the court was in session, and could be made at no other time. In the case in Wendell, and in The State v. Anderson, 1 Cox, 318; the writ was quashed on the argument of the case, although it had been allowed by the court. The court being then in possession of the whole case, can more satisfactorily exercise its discretion than on the ex pa/rte statement made to procure the writ. The writ must be quashed, with costs of the motion. Martin Ch. J. and Christiancy J. concurred.