Mayor of Harvey v. Dean

Mr. Justice Waterman delivered the opinion of the Court. It is impossible to reconcile all of the decisions in this country concerning the granting of writs of certiorari to review the proceedings of municipal bodies. The rule in this State is that this writ lies only to inferior tribunals, and officers exercising judicial functions, and that the act to be reviewed must be judicial in its nature, and not ministerial or legislative. It is sufficient that the act reviewed is of a quasi-judicial nature; that is to say, the body whose proceedings are brought before the court, need not be a court, in the ordinary sense of the term, but it must be a body having power to act judicially, and the action reviewed must be in the nature of judicial action. Hyslop et al. v. Finch, 99 Ill. 171; Commissioners of Mason and Tazewell Drainage District v. Griffin, 134 Ill. 330; Miller v. Trustees of Schools, 88 Ill. 26. The writ does not lie to review merely ministerial or legislative action. It is not always easy to distinguish clearly between what is legislative and what is judicial action. It was said by Chief Justice Marshall, in Hyman v. Southard, 10 Wheaton 46, that the difference between the three departments of our government is that the legislative makes, the executive executes, and the judiciary construes the law. It is well recognized that' the prime function of the judiciary is to adjudicate upon and protect personal and property rights. It has been said that that which distinguishes the judicial from the legislative act is, that the one is a determination of what the existing law is in relation to something already done, or that has already happened; while the other is an enactment of what the law in the future shall be. Judicial action is a passing upon and determination as to things already in existence; legislative is the making of a provision for the future. Judicial action implies parties, an existing thing about which a determination is to be had, and also parties having rights in respect to such things, which parties being before court, or as is sometimes said, in court, have a right to be heard concerning that about which it is proposed to adjudicate, A body, municipal or otherwise, to which power has been intrusted, does not exercise judicial action merely because it is vested with discretion, or may exercise judgment. Almost all ministerial officers are intrusted with more or less discretion, and all legislative bodies not only use discretion but judgment in whatever they do. The State of Rhode Island v. Commonwealth of Mass., 12 Peters 657 and 718; Floinoy v. The City of Jeffersonville, 17 Ind. 169-173; In re the Petition of Zborowaki, 68 N. Y. 88-97; Mills v. The City of Brooklyn, 33 N. Y. 489 and 492; Tyndall et al. v. Drake et al., 60 Ala. 170-177; Mabry v. Baxter, 67 Tenn. 682; Rice et al. v. Parkman, 16 Mass. 326-328. Tested by these rules, it is manifest that the mayor and common council of the city of Harvey, by creating an ordinance providing that the city council might, in its discretion, upon certain conditions therein named, and upon a yea and nay vote, grant licenses to sell intoxicating liquors, was not exercising a judicial function, or indulging in judicial action. ' They were not adjudicating or determining as to anything then existing, oras to the property or personal rights of any individual. It does not follow that because a municipality may be vested with the power to act both in a legislative and judicial capacity, and that a writ of certiorari will lie to review acts done under the latter, that the mere legislative proceedings of such body can be reviewed under such writ. It is held in New Jersey, Camden v. Hulford, 26 N. J. 49, that the acts of a municipal corporation may be reviewed by certiorari whether such acts are judicial or legislative, but so far as we are aware, such' is not the rule in any other State. . When a writ of certiorari is issued for the purpose of reviewing the proceedings of a municipality, it is for the purpose only of determining the legality of the proceedings reviewed, and the judgment is that the proceeding.is valid or invalid, not whether it is wise or discreet. Hyslop v. Finch, supra. The writ does not lie to review an exercise of discretion. Am. & Eng. Enc. Law, Vol. 3, p. 64; Townsend v. Copeland, 56 Cal. 612; Lake v. City of Newton, 54 Iowa, 5S6; Tiedt v. Carstensen et al., 61 Iowa, 334; Supervisors of Midland v. The Auditor General, 21 Mich. 165; Benton v. Taylor, 46 Ala. 388. The two things concerning which petitioners allege the action of the city council was in a quasi-judicial capacity, are fixing the amounts for which the licenses might be issued, and determining the sum in which the licensee should give bond. These were things concerning which the council was vested with a discretion. Where a tribunal is pursuing a discretion given to it, its acts in exercising such discretion can not be said to be illegal, whatever else they may be. The writ of certiorari does not lie when appeal, writ of error or other mode of review is given. Ennis v. Ennis, 110 Ill. 18; Vol. 3 Am. & Eng. Enc. Law, 64. What is claimed in this case is, that the court will, upon certiorari, determine the legality of any and all ordinances of the city. We are aware of no authority for such position save the rule existing in the State of New Jersey. Whether the ordinance of the city of Harvey is valid or invalid is not before this court for determination. If any license shall be issued thereunder, and proceedings shall be had against any person for selling liquors in said city who has such license, the question of the validity of the ordinance can be tested. The present proceeding is unwarranted and the judgment of the Circuit Court is reversed.