
    In the matter of the application of D. D. Conover vs. Charles Devlin.
    Where proceedings were commenced before a judge, to compel the delivery of books and papers by a public officer, to his successor, and the judge deter-' mined that the applicant was entitled to the relief asked for, and made an order to that effect, after which a common law certiorari was issued, to remove the proceedings into the supreme court; Held that upon the service of the certiorari upon the judge, the proceedings before him were suspended ; and that it would therefore be improper for him to issue the warrants to enforce his order.
    
      THIS was an application for warrants to enforce an order previously made, for the delivery to Mr. Conover, by Devlin, of the books and papers appertaining to the office of street commissioner for the city of Hew York.
   Peabody, J.

Proceedings having been instituted before me, under 1 E. S. p. 125, § 56, to compel Mr. Devlin to deliver to Mr. Conover, the books and papers pertaining to the office of street commissioner of the city of Hew York, on the ground that the applicant was successor to the office to which they appertain, and the parties having been heard from day to day until the 8th day of July, 1857, and my decision having been announced on that day, that the applicant was entitled to the relief asked, an order to that effect was accordingly made, reduced to writing, and signed by me on the 10th day of said July. That order was served on the respondent, and delivery of the papers in compliance with it demanded, which was refused. This refusal was followed by an application for the warrants contemplated by the act, to which, by my decision embodied in the order I had determined, he was entitled. Pending this application, and while a discussion respecting the effect of an injunction then in force, restraining the applicant from taking into his possession the books and papers was in progress, a common law writ of certiorari from the supreme court was served on me, commanding me to certify to that court my proceedings in the premises. The injunction has since been dissolved, and I am now asked to issue the warrants notwithstanding the certiorari.

The fact that this writ from its operation suspends the power of the officer to whom it is addressed is not denied by the applicant, but on the contrary it is admitted, as a general proposition. But that such is not the effect in this particular case is insisted on several grounds—some of which seem to arrange themselves under the following heads:

1. It is said that this proceeding, in its nature, being summary and intended to confer present possession merely, not to determine the ultimate rights of the parties, is an exception to the general rule, and is not suspended by the operation of this writ. And there is much of good sense in the suggestion that such a proceeding should not he liable to he suspended in this manner. It does not determine the ultimate rights of the parties, hut leaves them to he determined in a more grave and formal proceeding. They depend on the right to the office, and for ascertaining that, ample provision was made before. The ancient prerogative writ of quo warranto gave contesting claimants a mode of determining controversies respecting office, conclusive in its nature on all the parties interested. In a proceeding by that writ in its day, as since in the action of the same name, the sovereign was plaintiff, while the person asserting his rights to the office, if there were such a claimant, was made a party incidentally, under the title of relator, and in fact was and is practically plaintiff, so far as his own rights are concerned; and the defendant, who was called on by the proceeding to show by what authority he held the office, if unable to show sufficient warrant in law, was, in obedience to the rights of the plaintiff, (and the quasi plaintiff, if he was deemed entitled,) ousted. The state was thus freed from the evil of an unlawful exercise of its franchise by an intruder, and a vacancy was made into which the quasi plaintiff or relator was inducted, if his title was approved: and if not, the office remained vacant, and ready for the occupation of the person who should be duly selected and qualified to fill it. The right to the office being thus determined, the right to the hooks and papers appertaining to it followed it as a necessary consequence, and thus in a grave and dignified manner the rights of the parties were ascertained and declared, and afterwards by adequate process enforced.

This proceeding, however, was not thought sufficiently speedy to answer all purposes, and accordingly, to supply immediate and urgent necessities, the statute under which I am acting was enacted; by which, in a brief and summary manner, on a decision of the question of succession in fact, merely, the incumhent should he put into possession of the hooks and papers for the time being. Thus until the title could he ultimately ascertained hy the only conclusive adjudication, the person in and exercising the functions of the office with color of title should he placed in possession of the hooks and papers incident to its use.

This proceeding under the statute is not the proper one to determine the title to the office, nor to confer' possession of it, and when resorted to in the case of contesting claimants like the present, it should not he allowed to do mofe than merely to enable the actual incumhent—the one in and occupying— to get possession of the hooks and papers, as the means of performing the duties of it for the time being.

There would, therefore, seem to he propriety in limiting the decision of this question, in most cases, to the magistrate before whom it should originate, or at least in allowing proceedings before him to he terminated, and his judgment to he executed, before a stay of proceedings should be allowed. The question of temporary possession of books, &c., necessary to the performance of the duties of an office, would seem to he a very suitable one to he determined speedily, and so this act seems to contemplate that it shall-he, and such is the course in practice. But that no error, however palpable, should be corrected íy a revisory tribunal, or warrant a suspension of a proceeding of this kind in any case, does not seem necessary, or to have been the intent of the legislature. All the usual means of procrastination are excluded. The time for appearing after service of process, the delays incident to formal pleadings, to formal trials in term time, indeed all formalities are dispensed with for the sake of speed in arriving at the result. But one single mode of reviewing and correcting errors is left, and that by aid of the writ of certiorari —the venerable, hoary writ, as it was styled on the argument. This writ is not a matter of strict right, hut is always in the discretion of the court, and is only to be allowed in cases of this kind, where the court sees that there is probable error; and, further, that to review in this manner will, on the whole, conduce to substantial justice between the parties; and further, that it will do no harm to the public. This is the rule, and where it appears that injustice has probably been done, and that the error can be corrected on certiorari, without hardship to the party against whom the writ is asked, or detriment to the public, it should be granted, and in these cases only should it be granted, say the authorities. Our reports abound in cases where, after solemn argument and grave deliberation, the writ has been refused, and others, in which, after having been granted, it has been quashed, on the ground that general justice and the public interest did not call for it, or perhaps seemed opposed to it. Such is the case of The People, ex rel. Church, v. The Supervisors of Allegany County, (15 Wend. 198;) and numerous other cases are there cited to the same end. Throughout the opinion in that case, the learned Judge (Bronson) treats it as a writ only to be allowed on special cause shown, and when, in the discretion of the court, it appears that substantial justice between the parties requires, and the public interest at least permits it. That was a motion to quash a writ already granted, and the court allowed the motion entirely on the ground that it ought not to have been granted, (the public interest seeming inconsistent with it,) whether the relator had sustained wrong or not, and whether he had or had not any other remedy. He expressly excludes all inquiry into that, and virtually, for the purpose of the argument, assumes that he might have, and indeed that there might be no other remedy. He says: “Whether the relator has in truth sustained an injury, I do not think it necessary to inquire; nor do I feel called upon to point out a remedy.” From what I have said it appears, I think, that this remedy by certiorari is well hedged about with safeguards. First, that it should appear- probable that wrong has been done; and, second, that the writ will not operate oppressively; and that both these particulars should be determined by the court before the writ is allowed, and, indeed, that it should he quashed after it is allowed, if it do not appear that both the requisites occur in the case. (15 Wend. 198.) This -seems to me to answer the argument that the writ should not, and therefore does not, operate to stay a proceeding like this, because of the danger that it would defeat the end designed by the proceeding itself. If the judgment sought to be reviewed, after careful examination, seems to be wrong, and it also seems, after like careful examination, that no harm can be done by allowing the writ to take its course, (questions with the decision of which I have nothing to do, but both of which the court granting it is bound to decide in favor of the applicant before it allows it,) that the writ, when allowed, should operate, to stay the proceedings until a review of them can be had, would seem not only not inconsistent with this remedy, but there would seem to be no good ground to object to the practice on principle or in policy. The case of Lynde v. Noble, (20 John. R. 80,) only decides that a certiorari issued to a justice to review proceedings before trial, under the “Act to amend the act concerning distresses for rent, and for other purposes,” passed April 17, 1820, should be quashed. It is far from deciding that while the certiorari was in force, the officers to whom it was issued might disregard it. In that case it was prematurely issued, being before the trial, and the officer to whom it was directed did disregard it, so far as to finish the trial to be sure, but no action was taken to determine the effect of his acts upon himself or third persons, and, therefore, nothing is decided on that subject, and even he refused what I am asked to do—to issue a warrant—until the certiorari was quashed. So that case is no authority for the act I am asked to perform; and indeed, it seems to be assumed throughout the opinion of the court, that the writ did operate to suspend the powers of the officer after he had made his decision, which is-exactly the condition of this case.

2. It is said that the order made by the court the day after the certiorari was issued and served, to the effect that said writ should not be deemed to operate as a stay of proceedings, or to interfere in any manner with the proceedings before me, prevents it having any such effect. But if the certiorari the day before suspended my powers and functions, it is not easy to see how an order of this kind could restore them—the writ being still in existence. The writ itself, of its own force, (ex proprio vigore,) when allowed- and served, terminated my powers, if it had any application to disturb the proceeding at all; and while it remained tinrevoked and in force as a writ I doubt very milch if its legitimate effect could be thus modified by an order of the coiirt itself. My powers are suspended, if at all, by a transfer of the proceedings from me to the supreme court, and a necessary consequence of this would seem to be that I am not in possession of the case, and can take no steps in it. The allowance of the writ was unconditional, and this order, if it have any effect, must have the effect to revoke some part of it, while by its terms it would seem not so much designed to revoke the allowance as to explain it, and declare or order that the writ shaE not be deemed to have a certain effect usually supposed to follow as a legal consequence from it. What the effects of a certiorari are is a question of law, and is not to be determined by declarations. It was urged on the argument, and not denied, and perhaps I am at liberty to assume that the court, when it allowed the writ, refused, and did not intend to allow a stay of proceedings. That would not alter the effect of the writ in that respect, if, as it seems, it operated as a stay. The mere saying by the court, in an order, that a writ of certiorari or habeas corpus, or other process, shall not perform the functions assigned to it by law, or that one of these writs shall have the effect of the other in a particular case, cannot make such a writ operate as it is declared to, differently from its legal province. The chief, and perhaps the only immediate effect of this writ, is to remove the proceeding from before the officer to whom it is issued to the supreme court. Can an order to the effect that notwithstanding it is removed from before him to the supreme court, still it remains, and shall he deemed to remain, before the officer from whom it is taken, have that effect and make it ubiquitous to that extent ?

The case of Patchin v. The Mayor of Brooklyn, in some of its obiter dieta and head notes, seems to conflict with some of these views, I am aware, but I think that nothing decided in that case does conflict materially with them.

The fatal effects of the writ upon this proceeding, the fact that it terminates and annihilates, for practical purposes, the whole matter, would he excellent ground for an argument to the legislature to show the necessity of a modification of the law, perhaps; and could, perhaps, have been properly addressed to the court in opposition to the allowance of this writ in the first instance; and it inay be of service on the motion to quash it if such a motion should ever be made, but it can have but little weight with me in determining what are the legal consequences of the *141 when allowed and in force.

That the court misunderstood the situation of the proceeding at the time of the allowance of the writ, and would not have allowed it, if it had correctly understood it, may also be a good argument on a motion to the same court to quash it; but I cannot know the fact; and if I could, such information would not. properly be the basis of action by me. I am to obey the writ as it is, so long as it continues to stand, not to indulge in speculations as to what might or would have been done by the court as to allowing it under other circumstances. My duties depend on what it is; not at all on what it might have been, or what was the intent of the court at the time, except as it is expressed by the fact of allowing it. The fact that the court refused to grant a stay of the proceedings asked in connection with it, and the fact that the same court which made the allowance has since made the order above referred to, seems to show that it,was not the intention of the court that any thing having the effect of a stay should receive its sanction, and this fact would probably control on an application to that court, in which alone the impediment complained of can be removed.

[New York Special Term,

July 17, 1857.

It was urged, also, that the signing and delivery of these warrants were judicial acts, and that therefore they were not restrained by the certiorari. But my judgment has not only been announced orally, hut reduced to writing in the form of an order, and signed by me and delivered to the applicant. I have there decided that the applicant should have the warrants. Is it possible that the writing of these papers, and signing and delivering them, are judicial acts ? And even if they were, they are, so far, separate acts, distinct from the previous proceedings at the trial, that the principle which authorizes the conrpletion of a trial because it is begun, (as in the case where the venire had been awarded,) would not apply here to justify me in proceeding. But it seems to me that it certainly is not a judicial hut a ministerial act, and that, therefore, I am hound to refrain.

Finally, I see no mode of escape from the restraining influence of this writ while it remains in force, and the only remedy for the applicant seems to be by resort to the court granting it, and to that court I must commend him. My hands are certainly hound, and I am contrained to suspend my proceedings, and decline for the present, to issue the warrants.

Peabody, Justice.]  