McCreary v. Rhodes & Silk

Arnold, J., delivered the opinion of the court. After the petition of Rhodes & Silk for license was filed, but before final action was taken in regard to it, some of the appellants objected and petitioned the mayor and selectmen, for causes stated, not to grant the license. This made appellants parties to or connected them with the proceedings sufficiently to enable them to prosecute a writ of certiorari to have the same reviewed. In this petition for license Rhodes & Silk are not recommended to be of good reputation, nor is it shown in the petition or by the record returned in obedience to the writ of certiorari that they, or either of them, were residents of the city of West Point. Without such recommendation and residence the mayor and selectmen had no authority to grant them license. It was contrary to law for them to do so. Code, §§ 1100 and 1103; Corbett v. Duncan, ante 84. The jurisdiction of the mayor and selectmen in the premises was special and limited, and could be lawfully exercised only in strict accordance with the conditions and limitations imposed by the statute. In such case no presumption can be indulged in favor of their proceedings, but all jurisdictional facts must appear affirmatively in the record, or their proceedings must be adjudged void. Root v. McFerrin, 37 Miss. 17; Powell on Appellate Pro. 353, 354. The answer of the mayor and selectmen to the writ of certiorari indicates that there was satisfactory proof before them of the reputation and residence of Rhodes & Silk, but such answer is out of place and cannot be considered in proceedings by certiorari. No answer was required or allowable from them touching the facts or merits of the cause. All that was or could be required of them was to transmit to the circuit court a full and complete certified record of their proceedings in the matter of which complaint was [313] made. If more was required or returned, it must be rejected or disregarded. The only office which the common law writ of certiorari performs is to cause the record of a proceeding to be certified from an inferior to a superior tribunal. Upon a return of the writ the cause is tried solely upon the record. There can be no trial upon issues of fact in such. case. When the return is made the court determines upon the record alone, whether the inferior tribunal had jurisdiction of the subject-matter involved, and whether it exceeded its jurisdiction or otherwise acted in violation of law. Puterbaugh’s Pl. and Pr. 703 and 704; Allen v. Board of Levee Comrs., 57 Miss. 163; Duggen v. McGruder, 12 Am. Dec. 527 and note; Powell on Appellate Pro. 345-358. There is nothing in the various objections made by appellees to the writ of certiorari, or in the motion and affidavit of the clerk of the board of mayor and selectmen, which should have operated to defeat a trial of the cause on the record of the proceedings of the mayor and selectmen in reference to the license in question. The judgment is reversed, and the proceedings of the mayor and selectmen as to the license granted to Rhodes & Silk are quashed and for naught held.