State v. District Medical Society

Van Syckel, J. The prosecutor, who is a member of the Hudson County Medical Society, having been tried before the society for a violation of professional ethics, caused the proceedings against him to be removed to this court by certiorari, where motion is now made to dismiss the writ because no judgment had been rendered by the inferior tribunals, and that, therefore, the writ will not lie. A writ of certiorari is in the nature of a writ of error, and is resorted to in those cases where a writ of error does not lie. When courts act in a summary way, or in a new course different from the common law, a certiorari, and not a writ of error, is the proper remedy. There is no doubt of the power of the Supreme Court, by virtue of the common law writ of certiorari, to review the final adjudications of special statutory tribunals, which act in a summary way, different from the course of the common law. 1 Archbold’s Pr. 229; Groenwelt v. Burwell, 1 Salkeld 263; Phillips v. Phillips, 3 Halst. 122. [202] There is no power in this court to continue or complete the proceeding which has been instituted in the special tribunal created by positive law. The question to be tried cannot be withdrawn from that forum, nor can it be denied the right to terminate the proceedings which have been initiated before it. The only legitimate use of a certiorari is, to subject to review in this court the final decision of the inferior jurisdiction. If parties are permitted to invoke its aid at any time during the progress of their cause, it would lead to consequences which are inadmissible. If the writ may issue before judgment, it may go at any and every stage of the case. At every single step in the cause it might be certified into this court, and when a final determination was reached in the tribunal below, after this court had adjudicated the various questions which might be started, and after delay almost interminable, the case would be subject again to review after such final judgment. The authorities are against the use of the common law writ of certiorari before judgment, in cases which cannot be continued or terminated in the court above. In Rex v. Nicolls, 2 Strange 1227, the certiorari was quashed, because it issued before judgment. In the case of Groenwelt v. Burwell, 2 Salkeld 144, the proceedings of the censors of the College of Physicians were not removed until after they had condemned Ur. Groenwelt, and passed judgment upon him; and in an action of trespass between the same parties, growing out of the case last cited, reported in 1 Comyn 80, Chief Justice Holt, in speaking of the way in which the action of the censors might have beeu reviewed, says that the doctor might have had a certiorari to remove the record of conviction, and then it might be examined and reviewed; but it was not even suggested that a review could have been had before judgment. In Hew York it is well settled that certiorari never lies to remove a civil proceeding before an inferior magistrate, who has jurisdiction, by statute, until after judgment final. Lynde v. Noble, 20 Johns. 83; People v. Supervisors, 43 Barb. 237. [203] The only authorities cited to justify the granting of the writ in this case, are those cases in this state which have settled the practice that certiorari to remove proceedings in forcible entry and detainer, and proceedings before a justice of the peace uuder the act of March 4th, 1847, may be allowed before the trial below. In Mairs v. Sparks, Southard 369, winch was an action of forcible entry and detainer, Justice Southard said he was not satisfied with this practice, but yielded to it, because it had theretofore received the sanction of the court. These cases are undoubtedly exceptional, and a departure from the general rule, but even then the writ is not used until the final determination below. I find no authority for certifying into this court for review the proceedings now in question, before judgment, and therefore the writ should be quashed. Justice Scudder concurred. Cited in State, Hoey, pros., v. Collector, 10 Vr. 75.