
    William Dixon v. The City of Cincinnati.
    Proceedings of the city council of Cincinnati in opening streets, and in assessing damages and special taxes, can not he reviewed on certiorari.
    A certiorari will not he sustained to reverse a judgment of the mayor of Cincinnati, which is absolutely null and void. ,
    This case comes before the court on a writ of certiorari to the mayor of Cincinnati, for the purpose of reversing a judgment of said mayor, in an action of debt, rendered against said Dixon.
    The transcript, returned in obedience to the writ, contains a history of the proceedings of the city council of Cincinnati, ^relative to the opening of a street in said city, called 'Commerce street, commencing June 5, 1839, and ending July 13,1842, which is certified by the city clerk. From this, it appears that the street was opened, the damages assessed, and a special tax assessed upon the proprietors owning lots adjoining the streets, according to the benefit conferred upon them by opening the same. The plaintiff Dixon was .taxed to the amount of $880. A copy of the assessment was delivered to the city collector.
    
      On November 28, 1842, the mayor of the city made the following entry on his docket:
    “ City or Cincinnati v. Wm. P. Dixon.
    “Action of debt for $880, special tax for opening Commerce street, from Yine to Race street, assessed June 24, 1842.
    “It having been made to appear to me, Samuel W. Davis, mayor of said city, that a lawful demand has been made of William P. Dixon, the defendant, and payment refused, judgment is therefore rendered against defendant, Wm. P. Dixon, for the sum of $880, and interest and costs. Debt $880; costs 75 cents.”
    This is certified by the mayor to be a true copy from his docket.
    On the same 28th day of November, a warrant, of which the following is a copy, was issued by the mayor:
    “ State or Ohio, j
    City or Cincinnati, j
    “ To James Saffin, Esq., marshal of said city, greeting:
    Whereas, on June 24, 1842, a special tax, amounting to $880, on that lot or parcel of land lying and being in the city of Cincinnati, on the north side of Commerce street, between Race street and Gilmore’s alley, being part of in-lot No. 228 of the original lots, fronting ninety-five feet, more or less, on Commerce street, and extending back northwardly of that width about ninety feet, to the north line of *said lot No. 228, bounded on the west by a public school lot, and on the east by Gilmore’s alley, which tax was assessed to defray tho expense of opening Commerce street, between Yine and Race-streets.
    “And whereas, in pursuance of the ordinance of said city, in such case made and provided, a lawful demand has been made of Wm. P. Dixon, the owner of said lot, for payment of said tax, by Joseph Alexander, appointed by the city council for that purpose, which payment the said Wm. P. Dixon has failed to make. You are therefore commanded to seize the lot or parcel of land described as above, as the property of the said William P. Dixon, and to sell the same by public auction, or so much thereof as will pay the said tax, interest, and cost, due thereon, and of this writ make legal service and due return according to law.
    “ Given under my hand, and seal of said city, this day, Novem- - ber 28, 1842.
    “Samuel W. Davis, Mayor."
    
    
      Upon this transcript the following errors are assigned :
    1. That the city council of Cincinnati have no lawful power to lay out and establish Commerce street in manner and form as set forth in the transcript.
    2. That the city council of Cincinnati have no power to open or extend any street or alley within the city, until they have first determined that the public good and convenience of the citizens of said city requires the same to be done; and, from the said record, it does not appear that any such determination was had.
    3. It does not appear, from the said record and proceedings, that the damages and benefits resulting from the opening of the said street therein named, have been legally ascertained.
    4. The said review, in the said proceedings set forth, is illegal.
    5. The said mayor is not by law authorized to enter said judgment against the said ffm. P. Dixon.
    6. Said judgment could not be rendered until after service of process upon Dixon, or until he had a day in court.
    7. There is no law authorizing the said sale by the marshal, in pursuance of said warrant to him directed, nor to pass the titlo to the said premises.
    *8. The said proceedings do 'not warrant and are not sufficient to maintain at law the said action.
    9. Said judgment should have been for the said Dixon, and not for the city of Cincinnati.
    Y. Worthington, for the plaintiff, submitted an elaborate argument, contesting the right of the city council to impose the tax, or assess the damages complained of, the legality of their proceedings in assessing the same, the right of the mayor to render judgment for the amount of the damages assessed, to issue his warrant upon such judgment, and the power of the marshal to execute such warrant; but, as the case was decided upon other grounds, the argument is omitted.
    Samuel M. Hart, for the defehdant,
    also submitted an extended argument, of which so much is published as bears upon the point decided by the court:
    At the outset, I insist that the writ must be quashed, irrespective of merits, on the ground of public inconvenience. To grant a certiorari for the purpose of reviewing the acts of special jurisdictions, created by statute, which do not proceed according to the course of common law, is not ex debito justifies, but rests altogether in the discretion of the court. It is therefore that judges have distinguished certain cases where they will deny the writ without regard to the regularity of the proceedings sought to be reversed. That the present is one of those cases, I think myself able to demonstrate.
    This writ can not be used to review an assessment of taxes or rates, whether made for the support of the government or to equalize the burdens of a public improvement. Thus in Rex v. Inhabitants of Utoxeter, 2 Stra. 932, we are told that “ upon great debate and search of precedents, it was held that a oertiorari would not lie to remove the poor rate itself, the remedy being to appeal, or by action when a distress is taken, which will answer all the ends of justice in coming at an unequal *rate; whereas, if the rate itself should be required to be sent up, great inconveniences and delays would follow, and a case was cited, Mich. T., (Ann. Regina, v. Inhabitants de St. Mary the Virgin, in Marlborough), where it was so resolved.” And in Rex v. The Justices of Shrewsbury, 2 Stra. 975, the reporter says: “ Upon appeal to the sessions, the poor rate was quashed, and the sessions made a new one; to remove which I moved for a certiorari, because here we could have no appeal, which was one reason given in the case of Utoxeter. But the court said that was not the only reason they went upon and denied the certiorari.” See also 2 No-land’s Poor Laws, 338: “ The poor rate can not be removed by certiorari, as it would prevent the collection of the rate, and the poor must remain unprovided for while the case is depending in the superior court.” In the King v. King, 2 Term, 234, a certiorari having been obtained to remove the assessment of land-tax in the tower division of the city of London, for the year 1787, it was quashed by the court of king’s bench, on the ground of public inconvenience. The point was very fully considered in the People v. Supervisors of Allegheny, 15 Wend. 198, where a certiorari had issued to remove the assessment of county, taxes. Mr. Justice Bronson, having reviewed the authorities, said, “that the court will not interfere in a case like the present, has, I think, for a long time been regarded as the settled law.” This doctrine was affirmed in the People v. Supervisors of Queens, 1 Hill, 195, on a motion for certiorari, to relieve the inhabitants of New Hemp-stead from an unequal tax. We have now seen that this writ will not lie to review ordinary assessments for the support of the gov-eminent, and also that it-will not lie to remove the rates which are made to support the poor, mend bridges, construct sewers, and drain fens. The last three are certainly eases of assessment to defray the expense of public improvements, and the principle of those cases ought to be decisive here. But other courts have already applied that principle to instances like the present. In the People v. Mayor of New York, 2 Hill, 12, where the common ^council had made a sower and assessed special taxes to meet the cost of it, the Supreme Court, for this reason, quashed a certiorari which had been granted to review those proceedings. So in the case of Chaple street (page 14), where the writ had issued to bring up the assessment of special taxes 'for grading and paving. So in the matter of Mount Morris Square (page 28), on motion for a certiorari to revise the assessment of damages and benefits which accrued by the laying out of that square, after full consideration of the authorities, the writ was denied. “ In general,” said Mr. Justice Oowen, speaking for the court, “ we ought not to allow the writ where assessments of taxes or awards of damages are in question which affect any considerable number of persons. If there bo a want of jurisdiction oven 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. The assessments and tax rates of the government, both general and local, are all imposed and framed by the officers of municipal corporations or quasi corporations, some portion of whose duties may be considered judicial, and therefore technically the subjects of a writ of certiorari; and the evil would be intolerable if these were to be deemed as a matter of course, liable to arrest and general reversal; because, in respect to a-single person, or any number of persons, the'Officers may have overstepped the precise line of their jurisdiction.” The point does not seem ever to have been presented in this light to the supreme court of Massachusetts. But, in Rutland v. Commissioners of Worcester, 20 Pick. 30, they declared that a certiorari ought not to issue, even though the record be informal or defective, “where substantial justice has been done, or where, if the proceedings are quashed, ruinous or very mischievous consequences would ensue, and where, upon reversal of proceedings, parties can not be placed in statu quo.” Perhaps this objection might be urged *with' better grace when the writ is applied for; but, in the present instance, no opportunity was given, as the application was, ex parte, to a single judge in vacation. It is not, however, too late; for, in many of the cases referred to, although a certiorari had been granted, the court nevertheless entertained the objection. And, in the New York authorities cited, it was repeatedly decided that, if the writ be awarded in such a case as the present, it will be dismissed for this reason alone, after a return and a hearing upon the merits. To that effect also was the language of Lord Mansfield, in Rex v. Wakefield, 1 Burr. 488. “We are all of opinion that the rule for the certiorari, having, been made absolute, and the return thereto having been filed, ought not now to stand-in the way, and prevent our coming at the real justice and merits of the case. For, if the certiorari issued, improvide, we can order it to be. superseded, and the return to be taken off the file.”
    Of the cases cited by Mr. Worthington, to show that he has here adopted the proper remedy, the following classification may be made:
    Van Steenbergh v. Bigelow, 3 Wend. 43, was an action of trespass by the owner of land against the officer who took possession of it for a turnpike. No question about assessment was made, and the court merely said that the regularity of the proceedings might be examined on certiorari.
    
    Ex parte Fay, 15 Pick. 243, 254, and Parks v. The Mayor of Boston, 8 Pick. 225, were not cases where any matter of assessment was involved. The former was in reference to a ferry license;, the latter, like Yan Steenbergh v. Bigelow, merely concerned the regularity of proceedings where land was condemned for a> street.
    Ex parte the Mayor of Albany, 23 Wend. 277, is against the position of Mr. Worthington. After stating several cases where the court would withhold a certiorari, Cowen J., said: “ So to remove and suspend proceedings on a general assessment, to the amount of thousands of dollars, because A. B. ought or ought not to be assessed, would sometimes work a *great evil. There the writ had better be refused and the party be put to his action.”
    Leroy v. The Mayor of New York, 20 Johns. 430; Lawton v. The Commissioners of Cambridge, 2 Cain, 182; Bouton v. The President of Brooklyn, 2 Wend. 195, and Storm, v. Odell, 2 Wend. 287, were cases where the question was not discussed nor oven noticed. Their authority, moreover, is denied in The People v. The Supervisors of Alleghany, 15 Wend. 209.
    Rex v. Dukes, 8 Term, 542, was a case of summary conviction for misdemeanor by a magistrate, nor is this point over so remotely alluded to.
    Birdsall v. Phillips, 17 Wend. 464, and Prindle v. Anderson, 19 Wend. 342, 391, were not cases of assessment; they arose under the New York statute relative to landlords and tenants.
    Patchin v. The Mayor of Brooklyn, 13 Wend. 664, only decides that, on certiorari, the question as to jurisdiction will be examined. Tho subject of, assessment was not decided, nor argued.
    The Matter of Divingston Street, 18 Wend; 556, was a motion to confirm the commissioners’ report, and the only part of the decision appropriate to this case is a grave doubt expressed by tho court whether certiorari would lie.
    That doubt, however, seems to have passed from the minds of the judges; for, in The People v. The Mayor of New York, 2 Hill, 11, the next case cited by Mr. Worthington, they expressly decided that the writ would not lie, which decision they affirmed in the last case cited — The Matter of Mount Morris Square, 2 Hill, 20-23.
    There is, therefore, nothing to prevent the court from a vindication of the law in this case, by dismissing the suit which has so long suspended the action of the city in a matter of great public concern. If we take the rule of the Massachusetts court, the certiorari must be quashed, because, as Commerce street has already been opened, graded, and paved, very mischievous *consequencés will follow a reversal of these proceedings, and the parties can not be put in statu quo. Or, if we take the more definite rule of the New York court, tho writ must also be quashed, as an attempt to review the assessment of public burdens. Nor has that learned tribunal overrated, in the least, the inconvenience of suits like this, whereby a municipal corporation is for years deprived of its revenue from taxation, and obliged to make good the damages, without being allowed to reimburse itself by collection of the benefits assigned.
   Hitchcock, J.

It will be seen, from the statement of the case and the errors assigned, that the four first errors question the propriety of the action of the city council of Cincinnati, in laying out and opening a street in that city; also, in assessing the damages sustained, and in assessing a special tax to make compensation for those damages. These proceedings, although they may have led to the subsequent action of the mayor, do not constitute any part of the transcript sent up by him, in obedience to the writ of certiorari. They are not certified by him, but by the city clerk, We have before us, in fact,-two transcripts from two different tribunals, and errors ate assigned upon each, although there is but one certiorari. And, so far as it respects the proceedings of the city council, the question naturally presents itself, whether these proceedings can be by this court reviewed in this manner. This question has been, as well as all the other questions raised, ably and elaborately argued by counsel.

By the constitution, the judicial power of the state is vested in a supreme court, courts of common pleas, and justices of the peace; but the specific jurisdiction of each is, in most cases, left to bo prescribed by the legislature. Section 6 of article 3 provides, however, that “the judges of the court of common pleas shall, within their respective counties, have the same powers with the judges of the supreme court, to issue writs of certiorari to justices of the *peace, and to cause their proceedings to be brought before them, and the like right and justice to be done.” If we look, then, to the constitution alone, the use of the writ of certiorari would seem to be confined to the removal of causes from a justice of the peace to a higher tribunal. But such could not have been the intention of the convention.

By section 3 of the act “ to organize the judicial courts” (Swan’s Stat. 222), it is provided that “ the Supreme Court shall have power, on good cause shown, to issue writs of habeas corpus, cum, causa certiorari, mandamus, prohibition,” etc. And further, “ that either of the judges of said court, in vacation, shall, on good cause shown, have power to grant writs of error, supersedeas, and certiorari; and also to grant writs of habeas corpus, for the purpose of inquiring into the cause of commitment.”

In section 4 of the same act, the court of common pleas is invested with the “ same power to issue remedial and other process (writs of error and mandamus excepted), as the Supreme Court hasand the judges of that court have power, within their proper jurisdiction, in vacation, on good, causo shown, to allow writs of certiorari, directed to justices of the peace.

The power of either couyt to issue a writ of certiorari, or of an individual judge, in vacation, to allow such writ, in a proper case, can not then be doubted. But the question is, as to what constitutes a proper case. Hitherto generally, if not universally, in our practice, these writs have been issued by this court, and allowed by its judges, to remove cases from the court of common pleas to this court, for some alleged error in that court, where the proceedings were not according to the course of the common law. And it has been held, contrary to the practice in England, that the proceedings could not be removed until after the final order of the court of common pleas, in the particular case. In fact, there has been no difference, in practice, as to the effect of the writ of certiorari, and the writ of error, except that *the former has been applied to cases where the proceedings are not according to the course of the common law, while the latter has been applied to cases where they ai*e. There can be no doubt there are other cases where a remedy might with propriety be sought, through the instrumentality of this writ. But it does seem to a majority of the court, that, in a case like the one before us, it is not the appropriate remedy, that is, so far as the action of the city council is concerned; and it seems to us that the authorities cited by counsel sustain us in this decision. Those proceedings may have been, and we incline to the opinion that they were,, in some respects, irregular, but we can not review them in this case.

The fifth error assigned is, that the mayor is not authorized by law, to enter the said judgment against Dixon.

This is undoubtedly true. There was formerly an ordinance of the city council, authorizing the mayor to enter such judgments; and, under that ordinance, the judgment, in the case of Cincinnati v. Gwynne, 10 Ohio, 192, was entered. The tax in the case now before the Court, was applied under an ordinance passed May 29,1839, which repeals former ordinances upon the same subject. This ordinance provides, “ that all special taxes authorized by this or any other ordinance of said city, by petition or otherwise, shall be levied and collected in the following manner, unless ¿herwise specially provided for, to wit: a certified copy of the list of assessment shall be by the city clerk delivered to such person or persons as the city council may appoint for that purpose, whose duty it shall bo to make immediate demand, of payment of the owner or owners, their agents or guardians, if they be found in said city, or if not, then on the premises so assessed; and, in case of failure to collect said tax on demand, as aforesaid, the said persons or lots so delinquent shall be forthwith reported to the mayor; and, if he is satisfied that lawful demand has been made, as above specified, he shall issue a warrant directed *to the marshal, commanding him to seize the real estate upon which such tax shall have been charged, as aforesaid, and sell by public auction so much,” etc. It will be seen, by this part of the ordinance, that no judgment is necessary — a mere ministerial act is to bo performed by the mayor. If the tax is not paid on demand, to the collector, he is to make returns to the mayor ; and thereupon, the mayor, without any preliminary proceedings, if satisfied that the return is correct, is required to issue a warrant to the marshal, requiring him to sell, etc. This was all done in the case before the court; a copy of the assessment was delivered to the collector; he had demanded the tax, which was not paid; of this fact he made return to the mayor, who thereupon issued his warrant. On the same day, however, he entered the judgment, which is claimed to bo erroneous. But it is worthy of remark, that the warrant is not at all based upon the judgment. In no part of that instrument is the judgment named. It merely recites such facts as go to prove the propriety of its being issued — such facts as show that, under the ordinance, it was the duty of the mayor to issue it. Counsel say, with propriety, that the mayor was not authorized to enter said judgment. He had no more power to do it, than would a justice of the peace have to enter a judgment in ejectment, or any private individual a judgment of any description. What is the consequence? The judgment is void; a perfect nullity, so far as respects rights acquired under it. It conferred no power upon the mayor to issue the warrant. He did not treat it as if it conferred any such power.

But does it follow that because the mayor had not power to render the judgment, therefore it shall be reviewed on writ of certiorari? If we were to do it, no good could possibly result. It is a nullity as it stands, and if reversed, it would bo nothing more nor less than a nullity. In fact, the reversal would be a vain thing. The truth is, the judgment is not the matter which disturbs the plaintiff in certiorari. The foundation of the complaints, on the previous proceedings of the city council, *in opening the street and assessing the tax, and not so" much the former as the latter. The existence of the judgment is seized upon as the basis of a writ of certiorari, in the expectation that when the judgment, void as it is, is before the court, the court will be induced to review and pass upon the legality of those previous proceedings of the council.

The other errors assigned, are relative to this judgment, with the exception of the one which charges that there is no law authorizing the sale of the property by the marshal, in pursuance of the warrant to him directed, nor to pass the title to the property when sold. If it be so, then a sale would do no injury to the rightful owner. He would not be divested of his interest; or if he was apprehensive that such sale might cast a cloud over his title, his proper remedy is in a court of chancery, where the sale might be prevented by injunction. But surely this circumstance can not operate as a legitimate foundation for a certiorari.

Upon the whole, after mature deliberation and reflection, a majority of the court are of opinion that the writ of certiorari was improvidently issued, and that the case must be dismissed for want of jurisdiction.  