Saratoga & Washington Rail Road v. McCoy, Hodgman & Williams , 5 How. Pr. 378 ( 1851 )

Willard, Justice.

The certiorari in this case was granted upon an ex parte application. Had notice of the motion been given, the defendants could have successfully opposed it on the affidavit upon which the present motion is founded. Opposing affidavits may be read in opposition to a motion for a common law certiorari (1 Hill, 195; 2 do. 398). The case of Commissioners of Highways of Warwick vs. The Judges of the Orange County Courts (9 Wend. 434), wras probably misreported, so far as it contains any different doctrine.

Thestrustees of the district were authorized by law to correct the error in the tax list and to refund the money improperly collected on it (L. of 1843, p. 165, § 13). After such correction and refunding the money, the plaintiffs had no reason to complain of the assessment; and there no longer remains any occasion to review the proceedings on certiorari. All this had been done before the certiorari was allowed.

But there is still another reason for quashing the writ. It was held in Slocum vs. Odell (2 Wend. 287), that a certiorari will not lie to the trustees of a school district to review the proceedings of the trustees or of the district meeting, because those proceedings could be corrected on appeal, under the law of 1827, to the commissioners of common schools of the town in which the district is situated. That case is approved in 2 Hill, 27, and the general principle is affirmed that where a remedy is given by appeal a certiorari should not be granted. Under the Revised Statutes (1 vol. 487, § 169,) an appeal in this case was given to the aggrieved party from the decision of the school district or their trustees to the superintendent of common schools; which appeal by the 7th section of the Laws of 1833, p. 164, was required to be first presented to the county superintendent, whose decision might be reviewed on appeal to the superintendent of common schools. The rail road company, therefore, had an ample remedy ■without resorting to a certiorari.

It has been objected that the present motion can not be entertained because the certiorari has not been returned, although it is returnable. In the People vs. The Judges, &c. (4 Cowen, 73), the same objection was taken to a motion to quash an alternative mandamus; and although it was stated by the court that a motion to quash the writ will not in general lie till it is returned, the decision of the cause did not turn upon that point. But in Ferguson vs. Jones (12 Wend. 241), a motion was made to quash a certiorari not then returnable. It was held that although the motion was premature, the party might take a rule under the general clause of his notice, to supersede it, and it was superseded accordingly. In that case the motion was made at the November special term, and the writ was not returnable until the January term following. This case contains a strong implication that the motion may be made to quash, after the writ is returnable, though in fact it is not returned. Be that as it may it is directly in point that the writ may be superseded, under a notice like the present.

The same purpose will be accomplished by a writ of .supersedeas, as by an .order to quash. It is therefore ordered that a writ of supersedeas issue to the writ of certiorari in this case tested the 17th day of February 1851, and allowed in open court at the Washington special term on that day; and it is further ordered that the plaintiffs pay to the defendants ten dollars for the costs of this motion.