
    THE PEOPLE on the relation of DEVLIN a. PEABODY.
    
      Supreme Court, First District ;
    
      Special Term, July, 1857.
    Cebtiobabi.—Should be Shpebseded, when ?
    The writ of certiorari is the appropriate remedy to obtain a review by the Supreme Court of the decisions and proceedings of inferior tribunals not of record.
    A certiorari is generally allowed as a matter of course, unless it is apparent to the court that injustice will be done by granting it.
    The nature and course of the proceedings (authorized by 1 Revised Statutes, 126, part 1, ch. 5, tit. 6, art. 6) for obtaining the delivery to the incumbent of a public office of books or papers appertaining to such office,—considered.
    Whenever after the granting of a certiorari it is made to appear to the court that the writ was granted before the proceedings removed by it were completely terminated, it is the duty of the court to direct a supersedeas of the writ to be entered.
    Motion to supersede a writ of certiorari.
    
    The certiorari in question was issued at the instance of Charles Devlin to bring into the Supreme Court for review, proceedings had before Mr. Justice Peabody under 1 Revised Statutes, 125, § 56, on an application for an order for the delivery by Devlin to one Daniel D. Conover of the books and papers appertaining to the office of street commissioner, in the city of NewYork. Those proceedings are reported, Ante 73.
    
      On an application for a warrant of arrest and search-warrant in execution of the order of Mr. Justice Peabody, granting Con-over’s application, it was objected that the allowance of the certiorari stayed all further proceedings before the officer to whom it was addressed. This objection was sustained. (See Conover’s case, Ante 182.)
    A motion was now made on behalf of Conover to supersede the certiora/ri.
    
    
      David Dudley Fields for the motion.
    I. If the writ of certiorari would lie at all in this case, it would enable the court only to look into the question of jurisdiction. Eo other errors could be inquired into upon the return. Unless, therefore, the papers on which the certiorari was granted show an apparent want of jurisdiction, the writ should not be granted. (2 Hill, 9; 23 Wend., 360; 2 Seld., 309.)
    II. The papers do in fact show complete jurisdiction. The statute (2 Rev. Stats., 125, §§ 51-56) has been strictly pursued.
    III. The writ of certiorari is not a writ of right, but of grace. Its allowance rests in the sound discretion of the court. It will never be allowed when it will tend to countervail the policy of the law, or when it would produce delay inconvenient to the public, or when there is any other adequate remedy. (15 Wend., 198 ; 2 Hill, 398; 21 Barb., 657.)
    IV. There is another adequate remedy; that is, by contesting the jurisdiction when the validity of the warrants is asserted. A want of jurisdiction can be set up at all times. (Bigelow a. Stearns, 10 Johns., 30; Bloom a. Burdick, 1 Hill, 130.)
    V. A certiorari issued in this case before the completion of the proceedings before Mr. Justice Peabody, would be of the greatest public inconvenience. It has been adjudged by the order made by him, that Mr. Conover is in the possession of the office of street commissioner. He has had the franchise defacto since the 13th of June. There cannot be two persons in possession of the office at the same time. Mr. Devlin cannot act, and if Mr. Conover is to be prevented from acting, the public cannot be served, and that department of the city government is paralyzed. Whereas, if Mr. Conover is allowed to have the benefit of the order made by Mr. Justice Peabody, the office will be executed, and Mr. Devlin’s rights, if he has any, can be asserted by quo warranto, without detriment to the public.
    VI. Much yet remains to be done by Mr. Justice Peabody before the completion of the matter before him. He must “ by warrant commit” Devlin to jail, till the delivery of the books and papers; he is to “ issue his warrant” of search ; and upon the bringing of the books and papers before him, he is to “ inquire and examine whether the same appertained to the office,” and “ cause the same to be delivered to the complainant.” If the certiorari stays the completion of these things, it stops them forever, for they can never be resumed. A procedendo cannot issue after the certiorari is returned. (Tidds Pr., 349.) And the Supreme Court cannot issue the warrants or conduct the further inquiry.
    
      VII. For the reasons stated in the last point, the right to issue the certiorari till the completion of the proceedings, is to be deemed taken away by the statute allowing this summary remedy. The Legislature could never have intended that the custody of official books and papers might be withheld from the successor to an office till a certiorari should be disposed of. The proceedings are intended to be most summary, and not liable to be stayed by any other order or proceeding. They do not decide the right, but only who is to have the books till the right is tried. To suppose that the Legislature intended to leave these summary proceedings liable to be suspended by certiorari, is to suppose that they intended to institute a useless ceremony. (Lynde a. Noble, 20 Johns., 80.)
    VIII. If the certiorari be not a stay of proceedings, it- is because it was prematurely issued. If rightfully issued, in a proper case, and at a proper time, it removes the record, and thus stays the proceedings, because it leaves nothing before the officer in which he can proceed. If, then, it be held not to be a stay, it should.be suppressed as prematurely and improvidently issued. If it be held to be a stay, it should be superseded as tending to interfere with the judicial administration of a summary proceeding to thwart justice and countervail the legislative will.
    IX. Whatever may be held to be the effect of the writ as to a stay, it having been strenuously contended by the plaintiffs that the writ does stay all proceedings, notwithstanding the qualification sought to be effected by the order of the court, and great embarrassment having been produced by the doubts thence arising, and the parties being threatened with actions of trespass, the court will relieve the case of all embarrassment by superseding the writ. (13 Wend., 665-671.)
    X. This may be done immediately. (12 Wend., 241.)
    
      Charles O'Conor opposed.
    I. The writ of certiorari is the only mode in which the decision of Judge Peabody can be reviewed.
    II. On the face of the proceedings there was a want of jurisdiction, because Mr. Conover had sworn that he was in possession of the. office, books, and papers before they were taken from him. Therefore this application was inappropriate, being a mere action against a trespasser for taking property, when Conover, to repossess himself of it, should have had resort to the ordinary process of the courts of law.
    III. The certiorari issued at the right time, because at that' time Judge Peabody had decided that Devlin must deliver up the books, and the issue of the warrants afterwards was merely a ministerial act, being the execution of the judgment, and not the judgment itself.
    IY. Ro public inconvenience will result from the certiorari operating as a stay of proceedings, because the public are only interested in having an officer in the office. Devlin is now street commissioner defacto, and is performing his duties. The controversy is purely of a private character between Devlin and Conover; and, whatever may be the result of the issue as between them, the public interest will be subserved in the mean time.
   Davies, J.

The motion in this matter to supersede the writ of certiorari, is founded upon the allegation that the proceedings before the officer, which are thought to be reviewed by it, are yet incomplete and unfinished. The object of the writ is to obtain the judgment of this court before the questions are decided by the officer before whom these proceedings are pending.

A writ of certiorari is the appropriate remedy to obtain a review by this court of the decisions and proceedings of inferior tribunals, not of record, and the writ is generally allowed as a matter of course, unless it is apparent to the court that injustice would thereby be done.

It is often refused when asked for, frequently quashed by the court on its return, and not unfrequently superseded by the court allowing it.

In the present case the writ is asked for to obtain a review of the proceedings had before one of the justices of this court, in pursuance of the provisions of article 5, title 6, chapter 5, of part 1 of the Revised Statutes. This article is entitled, “ Proceedings to compel the delivery of books and papers by public officers to their successors.”

Section 50 of this title declares that whenever any person shall be removed from office, or his term shall expire, he shall on demand deliver over to his successor all books and papers in his custody at such office, or in any way pertaining to his office.

Section 51 provides, that if any person shall refuse or neglect to deliver over to such successor any books or papers as required, such successor may make complaint thereof to the chancellor, any justice of the Supreme Court, circuit judge, or first judge of the county where the person proceeded against resides; and if such officer is satisfied that any books or papers are withheld, he shall grant an order directed to the person refusing, to show cause why he should not be compelled to make such delivery.

At the time appointed, the officer is to proceed and inquire into the circumstances. If the person charged with withholding the books and papers shall make oath that he has truly delivered them to such successor, all such books and papers, all further proceedings shall cease.

If such affidavit is not made, and it shall appear that such books and papers are withheld, such officer is required to commit such person to jail, there to remain until such books and papers are delivered.

Section 54 of this act provides that such officer, if required by the complainant, shall issue his warrant commanding such books and papers to be brought before him, and he shall thereupon proceed to inquire and examine whether the same appertain to the office ; and if he shall find that the same appertain to the office, he shall cause them to be delivered to such successor.

Section 56 authorizes the same proceedings to be instituted against any person to whose hands shall come any such books and papers, belonging or appertaining to any such office.

In pursuance of these provisions of law, the proceedings have been instituted before one of the justices of this court, and at the time of the application of the complainant for the warrant to commit consequent on the refusal of the person complained of to deliver such books and papers, in compliance with the order of such officer, and at the time of the application for the search-warrant to bring such books and papers before such officer, that he might proceed to inquire and examine whether the same appertained to such office, and while such applications were pending and before the same were determined; the person proceeded against obtains the writ of certiorari for the purpose of having such proceedings reviewed in this court.

I think it is apparent, from the perusal of this statute, that the Legislature intended by its enactment to provide for the most speedy and prompt action to compel a delivery of books and papers to a public officer which were withheld from him. The duties of such officer could not be discharged without such books and papers, and any delay in their delivery would cause great public inconvenience, and might, by a preconcert in a body of public officers, entirely suspend the functions of government.

To obviate and prevent calamities so disastrous to the public welfare, these stringent and prompt remedies were provided. The proceedings were to be taken before such a class of officers as the Legislature judged most safe to intrust with the exercise of this high and delicate power. They were intended to insure, in any and every contingency, the possession by every public officer of the books and papers of his office essential to the discharge of his public duties. It should be borne in mind, also, that these provisions are not made for the benefit of the officer, but for the safety and convenience of the public, so that in no contingency shall any public officer be deprived of the means of discharging the duties of his office. These proceedings determine nothing as to the rights of the contestants to an office. An appropriate and well-known action is provided for that purpose, and which, by provision of law of this State, is in all courts to have priority over all other cases, so that its prompt decision may be arrived at. But the provisions of this statute are intended to insure no delay or interruption in the discharge,of the duties of any public office. It is true that they are not to be invoked by any man who sets up a claim to his office for the purpose of intruding himself and ousting the rightful possessor; and the Legislature, in the selection of the officers authorized to execute this statute, have secured to them every guard against its abuse or perversion to injustice. An eminent judge of this State has said, that “ an officer, acting under the statute in question, has no right to grant the order prayed for until the title of the applicant is clear and free from all reasonable doubt.”

Two of the justices of this court have decided that the claimant of these books and papers has a fair color of title to the office to which they appertain. And the justice of this court before whom the proceedings are pending, has decided that the claimant is successor in office of the late incumbent, and as such is entitled to the custody of the books and papers to enable him to discharge the appropriate duties of his office. I concur in the views of one of my associates, as expressed in an application made to him to restrain the delivery of the books and papers to the claimant, and in effect to restrain the proceedings of the officer in the matter then pending before him; that “ although not bound by the decision as an absolute res judicata, I am bound to respect it as. a controlling consideration in a matter addressed to my judicial discretion and my sense of judicial fitness. The public order and the harmonious action of the judiciary, as was in substance observed by a late distinguished chancellor, are more important than the rival claims, however interesting to the immediate parties, of two competing flour-inspectors and street commissioners.” These considerations induced me, when application was first made for the writ of certiorari, to refuse to accompany it with any stay of proceedings; and on the subject being brought again to my notice, to make an order that the writ should not in any way operate as a stay or interruption of the proceedings pending before my associate.

I had supposed that all his judicial action had terminated, and that the effect of the writ was to bring in revision solely the right of the claimant to the books and papers. I did not lose sight of the intention of the statute to have such delivery speedy and effective, nor did I think the party proceeded against had no remedy. It is his right, after compliance with the order of the officer, to have the correctness of his decision reviewed in this court. If erroneous, it will be reversed, and the papers and books will be returned to him. If correct, every consideration shows that the books and papers should be delivered in compliance with the order. It is better that the parties to this proceeding should be put to inconvenience (no substantial legal right is jeoparded by a compliance with this order), than that a public statute, passed for wise and beneficial purposes, and essential to the due administration of government and the discharge of the duties of its public officers, should be practically set at naught.

It was conceded on the argument, that the allowance of this writ rested in the discretion of the court. Such discretion, however, is to be exercised with a deep sense of duty, as well to the applicant for the writ as to the rights of the public and the consequences which might follow from granting it.

The case of Lynde a. Hoble (20 Johns., 80), shows that in no case should it be granted until there has been a final adjudication of the matter by the officer before whom the proceeding is pending. And even in such a case it has been refused, where the court saw that great injustice and wrong might result from issuing it. I am satisfied, as I was when this case was first presented to me, that I ought not to interfere at all with the proceedings while pending before the officer undetermined, and that I have the discretion to grant or refuse the writ of certiora/ri.

Having granted it, with the qualification that it should not operate as a stay of proceedings, and being clearly of the opinion that it ought not to operate as a stay, and it being insisted upon by the relator who procured its allowance that it is a stay, I have no doubt that it is my duty to do in effect what this court did in the case of Patchin a. The Mayor of Brooklyn (13 Wend., 671), direct a supersedeas of the writ; and the same is superseded accordingly.  