Gaither v. Watkins

• Citation: 8 A. 464,66 Md. 576
• Parties: GAITHER v. WATKINS AND OTHERS.
• Decision Date: 18 February 1887
• Court: Court of Appeals of Maryland

8 A. 464

66 Md. 576

GAITHER v. WATKINS AND OTHERS.

Court of Appeals of Maryland

February 18, 1887

Writ of error to the circuit court, Howard county.

J T. B. Dorsey & Son, for appellant.

Edwin Linthicum and H. E. Wootton, for appellees.

ROBINSON J.

The writ of certiorari was properly quashed in this case. In the first place, the clerk had no right to issue it without the order of the court. It is a mistake to suppose that the appellant was entitled to the writ as matter of right. On the contrary, a party was not entitled to it by the common law, even in criminal cases, except for good and sufficient reasons. Thus we find it laid down in Bacon's Abridgment "that, although the writ ought to be issued at the instance of the king for the purpose of removing an indictment, yet the court has a discretionary power of granting or refusing it at the suit of the defendant." Title "Certiorari." And in King v. Eaton, 2 Term R. 89, BULLER, J., said "that the rule requiring the defendant to lay a ground before the court for granting a certiorari had obtained since the time of Charles Second." Again, in Arthur v. Commissioners of Sewers 8 Mod. 331, it was remarked by one of the judges "that the writ of certiorari was not a writ of right; for, if it was, it could never be denied to grant it, but it has often been denied by this court, who may deny it or grant at discretion." And in regard to proceedings, strictly speaking, not criminal,--as, for instance, to remove the poor's rate, or the assessment of the land tax, or proceedings before the commissioners of sewers,--the writ was refused on grounds of public inconvenience. Rex v. Uttoxeter, 2 Strange, 932; Rex v. King, 2 Term R. 234; Rex v. Com'rs, etc., 1 Strange, 609. Not being, then a writ of right, but one granted by the court for cause shown, the clerk, it is clear, has no power to issue it without the order of the court. Besides this there is nothing on the face of the proceedings brought up by the certiorari to support the writ. The county commissioners have exclusive jurisdiction in regard to the opening of public roads. Parties intending to make application to them for this purpose are required to give 30 days' notice by publication in a newspaper, and upon such notice and application the commissioners may, if they deem it expedient, appoint persons to examine the premises, and to determine whether, in their judgment, the public convenience requires the road to be opened; and any one aggrieved by the action of the commissioners has the right of appeal to the circuit court.

Now, it was argued that a certiorari ought not to issue in any case where a party has a remedy by appeal or by writ of error. We are not prepared to go to this extent. This much however, we may say, that, as it is a matter resting in the legal discretion of the court, the writ ought not to be granted in any case where the party has a right of appeal, except for the purpose of testing the jurisdiction of the tribunal below. In Rex v. Whitbread, 2 Doug. 549, Lord MANSFIELD said: "We are all of opinion that in this case a certiorari does not lie. But if it did, it must be granted upon cause shown; and...