No. 2,540.

#### IN THE MATTER OF EIGHTH STREET, IN THE CITY OF OAKLAND, SMITH *et al.,*Relators, *v.*COUNCIL OF OAKLAND, Respondents.

Wbit op Oebtiokabi. — Euweb op Couet to Issue. — Constitutional Constbuction. — Under Art. YI. Section 4, of the Constitution as amended in 1862, the writ of certiorari can be rightfully issued from the office of the Clerk of the Supreme Court only upon an order of the Court, made upon application for that purpose.

Petition for "Writ of Certiorari.

Tbe facts are stated in the opinion.

*C. A. Tuttle*and *S. F. Gilehriét, for*Petitioner.

Wallace, J.,

delivered the following opinion, Temple, J., concurring:

It appears by the record that in August last a petition, duly verified, was filed in the office of the Clerk of this Court, praying that a writ of certiorari be issued directed to the Council of the City of Oakland, commanding them to certify to the Court certain proceedings had by them in opening, straightening and widening Eighth street, etc. ; and thereupon, upon the order of one of the Justices of the Court, the writ issued in the usual form.

Objection is now made on the part of the respondents that the writ was not issued in accordance with the requirements of law, and that the same ought to be dismissed.

The objection is based upon the proposition that a Justice of this Court has no authority to entertain a motion or application for this writ, as a proceeding before him in vacation, but that such a motion must always be made in open Court and before the Court in actual session.

The issuance of the writ of certiorari is an exercise of original jurisdiction by this Court, and its authority to do so is derived from the provisions of the Constitution.

It will be seen, by an examination of the Constitution as it stood previously to the amendment of 1862, that the' powers of the Court (except in proceedings concerning the writ of habeas corpus) were wholly of an appellate charac*482ter (Art. YL, Sec. 4), and were limited to tbe direct exercise of appellate authority and to tbe issuance of “ writs and process necessary to tbe exercise of their appellate jurisdiction.”

Tbe issuance of tbe writ of certiorari pre-supposed that tbe jurisdiction of this Court to bear and determine tbe case in which it was issued bad already fully attached, and it was only to aid and further tbe exercise of that jurisdiction, and not to obtain any new or additional authority oyer tbe case that tbe writ was directed to issue.

It will be observed,' too, that not only tbe Court, but each of tbe Justices of this Court, as contra-distinguished from tbe Court itself, bad tbe constitutional authority to issue tbe writ in aid of tbe exercise of tbe appellate jurisdiction conferred.

But tbe constitutional amendment of 1862 introduced a new feature and accomplished an important change in this respect. It not only extended tbe appellate power of this Court to subjects not theretofore embraced within its authority, but it conferred upon tbe Court, for tbe first time, tbe power to issue writs of mandamus, certiorari and prohibition, as a Court of original jurisdiction, and irrespective of the circumstance that its appellate jurisdiction bad or bad not already attached in tbe particular case.

I think that is demonstrable, from a careful consideration of the language, in which this original jurisdiction is conferred, that while it was tbe intention that writs of habeas corpus might, as theretofore, be issued either by tbe Court or any of its Justices, all of tbe other enumerated writs must be issued under tbe direction and authority of tbe Court itself, sitting as a Court, and not by its Justices as such, or any of them.

Tbe amendment is as follows : “ Tbe Supreme *Court*shall have appellate jurisdiction. * * * Tbe *Court*shall also have power to issue writs of mandamus, certiorari, prohibition and habeas corpus, and also all writs necessary or proper to tbe complete exercise of its appellate jurisdiction. Bach of tbe Justices shall have power to issue writs *483of babeas corpus to any part of tbe State,” etc. (Art. YI., Sec 4, as amended.)

It is to be observed, upon tbis reading, tbat all tbe appellate power is conferred upon tbe Court, and not any of it on tbe Justices composing it.

I tbink it will not be claimed tbat tbe Constitution intended to clotbe any or all tbe Justices, as contra-distin-guisbed from tbe Court itself, with appellate authority over, or jurisdiction to bear or determine any case “in equity,” or wbicb involves “ tbe title or possession of real estate,” etc. Tbe expression of tbe Constitution, in conferring authority to issue tbe writs of mandamus, certiorari and prohibition is not less clear in its import. “ Tbe Court shall have power,” etc. If it bad beenintended tbat tbe Justices of tbe Court, as mere judicial officers, should exercise tbis power, tbat intention has certainly not found any direct expression in tbe Constitution, and any rule of construction wbicb would deduce tbe power from tbe words employed in tbe instrument itself would also be potent to maintain tbat tbe general appellate power mentioned in tbe preceding clause of Section 4, is conferred not only upon tbe Court but upon tbe Justices as well — for we have seen tbat there is nothing in tbe language employed, nor in tbe context or subject matter, wbicb, under any known rule of construction, can distinguish tbe one proposition from tbe other. Tbis is plain enough of itself *;*but if there could be any doubt remaining upon tbe point, it will be removed upon looking again at tbe last clause of Section 4, already cited. Tbe power to issue tbe writ of habeas corpus, like tbat to issue tbe writs of mandamus, certiorari and prohibition, is there conferred on tbe Court ; but it is immediately afterward declared tbat “each of tbe Justices shall have power to issue writs of habeas corpus,” etc. Tbe language of tbis clause makes it evident tbat tbe authors of tbe amendment of 1862 bad in view tbe distinction between tbe Court and tbe Justices who compose it; tbat they understood tbat tbe power thereinbefore given to tbe Court to issue tbe writ of habeas corpus did not, of itself, fairly import a similar *484authority conferred upon the Justices. It is apparent, too, that when they came to confer upon the Justices of tbe Court the authority to issue the writ of habeas corpus, they singled out that writ from all the others with which they were then dealing, and *ex industria*omitted those others.

I am, therefore, of opinion that, under the provisions of the Constitution, a writ of certiorari can be rightfully issued from the office of the Clerk of this Court only upon an order of the Court, upon application made for that purpose, and that the twenty-fifth rule of this Court, providing that the writ may be issued by the Clerk upon the filing of a petition therefor, cannot be supported.

It results that the writ must be dismissed, and it is so ordered.