The People, ex rel. John Vanderbilt et al., v. Stilwell et al., Commissioners, &c.

The People, ex rel. John Vanderbilt et al., v. Stilwell et al., Commissioners, &c. The allowance or refusal of a common law certiorari, to review the proceedings of commissioners of assessment, &e., being matter of discretion in the Supreme Court, its determination to quash such a writ will not be reviewed in this court, although it declare an opinion that the proceedings brought before it were regular. The Supreme Court having the discretion to refuse or quash the writ on • grounds of public policy, although the proceedings brought up by it might be irregular, the judgment of this court on that question would not require the Supreme Court to allow their correction, and an appeal might be ineffectual It seems, however, that a formal judgment, affirming or annulling the proceedings below, would be appealable to this court Motion to dismiss appeal. The defendants were appointed commissioners under an act of the Legislature, passed April 17, 1854 (Laws of 1854, ch. 370), “’to provide for the continuation of Platbush avenue from the city line of Brooklyn to the town of Platbush.” They proceeded, under the act, to procure by dedication or appropriation the lands required. They also made the necessary contracts for grading, paving, &c., and the work was completed. They then made a statement of expenses and an assessment upon the owners of lands in the town of Platbush according to the supposed benefits received by each, in pursuance of .the 7th section of the act; which statement and assessment were presented to the County Court of Kings county, as required by the act. The County Court vacated the assessment, and referred the matter back to the commissioners, who thereupon made another statement and assessment, which were confirmed by said court. The relators then applied for a certiorari, which was allowed by Mr. Justice Bbown, of the Supreme Court. In obedience to that writ, the defendants made a return, certifying their proceedings, and afterwards they moved to quash the writ. The motion was granted by Justice Bbown, holding a special term of the Supreme Court in November, 1858. On making that order, he delivered his opinion to the effect that the proceedings of the commissioners were regular and the assessment valid, and that the writ ought to be quashed on the ground that it had been improvidently granted. The relators appealed to the Supreme Court at general term, where the order was affirmed, and they then brought the present appeal to this court. P. S. Crooke, for the appellants. I. N. Taylor, for the respondents. [MAJORITY — Comstock, J.] Comstock, J. The writ of certiorari I suppose to be a special proceeding, according to the classification of remedies contained in the Code of Procedure (§ 2). The final order in such proceedings can be appealed to this court, where it affects a .substantial right. (Code, §11, subd. 3.) A return being made to the writ, an order quashing it on the merits, or on the ground that no such writ ought to have been issued, is final, because it terminates the proceeding. Such an order can be reviewed in this court, provided it affects a substantial right. But no such right is affected unless the relator is entitled to prosecute the remedy by the law of the land. If the matter rests in the discretion of the court, so that the application for the writ may be granted or denied upon considerations of public convenience or policy in the particular case, then it may be quashed at any. time by the court from which,it issued for the same reasons, and this court will not review the decision. In this State it is extremely well settled that in cases like the .present, the allowance or refusal of the writ of certiorari rests in the sound discretion of the court. In the matter of Mount Morris square (2 Hill, 28), Mr. Justice Cowen said: “We have a discretion to grant or withhold a certiorari in all cases, and in general we ought not to allow the writ where assessments of taxes or awards of damages are in question, which may affect any considerable number of persons. If there be a want of jurisdiction even in the judicial act sought to be reviewed, or, in other words, if there be an excess of legal power by which any person’s rights may be injuriously affected, an action lies; and it is much better that he should be put to this remedy than that the whole proceeding should be arrested and perhaps finally reversed for such a cause.’’ In the case of The People v. Supervisors of Allegany (15 Wend., 206), Justice Bronson examined the subject very elaborately, showing with great clearness that, in cases of this kind especially, the writ of certiorari does not issue ex débito justitice, but only on application to the court and on special cause shown. “ The reason,” he observed, “ is, that these bodies [such as boards of supervisors, commissioners of highways, and the like] exercise powers in which the people at large are concerned, and great public inconvenience might result from interfering with their proceedings." In that case, the writ was quashed after a return had been made, on the ground that in the exercise of a sound discretion, and for reasons connected with the public convenience, it ought not to have been issued. In the case now before us, on the motion to quash the certiorari, the court, it is true, examined the proceedings of the commissioners and considered them regular; but although that .reason was assigned for the decision, it does not alter the essential nature of the order sought to be reviewed. It was a discretionary order, and if we were to review and reverse it upon the supposed legal merits of the case, it would still be competent for the same court, purely as a matter of discretion, to make another in the same terms. If that court, instead of quashing the writ, had in due form reversed or affirmed the proceedings of the commissioners, the legal merits of those proceedings would have been involved in the decision, and I see no reason to doubt that an appeal might have been brought to this court. But the order made simply denied to the relators the benefit of the writ by directing it tobe quashed; and' this, as we have seen, violated no legal right. The appeal must be dismissed. Appeal dismissed.