Year: 1873

in the light Of the general laws Of tn,
State upon the subject Of contested elec
tions and quo todrrdnt0. The principle
is that the jurisdiction Of the courts re
mains, unless it appears with un
equivocal certainty that the Legislature
intended to take il away. Language
like that quoted above will not ordinarily
have this effect, but will be construed
TO afford a cumulative or primary tribu
nal only, not an exclusive one. A pro
vision that no court should take cogni
zance Of election cases by quo iodrrdRto
etc., would doubtless be sufficient to di
vest the jurisdiction Of the judicial tribu
nails. And so perhaps Of provision
that the Council should have the sole ol
final power Of deciding elections,


| Agreeably to the rule just staded, q
clause in the charter OF a municipal cor.
poration that the city council shall be
the judges of the elections, returns and
qualifications Of their own members and
OF the other officers of the corporation
was held by the Supreme Court of Dele
ware not to oust the superior court oI
the State Invested with the usual pow
ers of the Kings bench) of its
experimenting jurisdiction over
corporations, and it was declared il the
council should enormously decide that a
person duly elected by the people was
not qualified to hold it, a mandamus
might issue commanding them to admit
him to office. = lf .80Iir 5Illj.


The section of the City Charter referred
to does not invest the Board of Alder
men with the exclusive jurisdiction to
judge of the qualifications of its mem
bers, and it does not directly or indi-
rectly take away the jurisdiction of the
Circuit Court. 1t is, therefore, clear that
that Jurisdiction still exists.


The remaining question is, have tie
writs in this case issued prematurely?


This question, it is conceived, must be
decided according to the laws of this
State regulating the issuance of writs
of certiorari. There can be no differ
ence in respect to the time Of the issu.
ance of the writ between cases origina-
ting in the Board of Aldermen and in
other tribunals which are within the
meaning of the law inferior jurisdic-
tions, and the question, therefore, is can
the writ Of certiorari issue before trial ?


At common law the ordinary Office of
this writ was to bring cases from the in
ferior to the superior court before trial,
although sometimes it was used after
trial TiGd's practice, 1893.


In Beck VS.. Knabb, lst Tennessee, 80, 62,
Judge Overton decides that writ of GER
tiorari may issue after Judgment below.
The ordinary use of the writ having been
before trial, it seems to have been ques-
toned whether it could issue after judg-
ment. iA q ~.N


In May vs.. Campbell the same Judge,
in rendering the opinion of the court,
says: The English courts seem to
have considered the writ of certiorari
when applied for by defendant as en-
tirely matter of discretion, and not to
be granted but upon the strongest rea-
son. It was considered matter of
course not to grant one after trial be-
low. Our Constitution seems to have
designed that it should be writ of com
mon remedy as well before as after trial,
upon sufficient cause being shown by
affidavit


In Hendrix VS.. the State, Cooke Ala
and All, the same doctrine is held, as
also in the case of Bob VS.. the State, al
ready referred to.


In the absence of these adjudications
how would the question stand? Imme-
diately prior to the adoption of the Con-
stitution we have the writ of certiorari
existing in full force and vigor, and its
usual office is to remove cases from the
inferior jurisdiction before trial. Then
the Constitution provides that the
Judges of the inferior and superior
courts of law shall have power in all
civil cases to issue writs of certiorari to
remove any cause or transcript thereof
from any inferior jurisdiction into their
courts in sufficient cause supported by
oath or affirmation 1t would seem
that if the Supreme Court had been en-
tirely silent upon the question, the Con-
stitutional provision cited could refer
only to the writ of certiorari as 1t existed
at common law, or as used in this State
Immediately prior to the adoption of the
Constitution. We have already seen that
at common law, and in this State before
the adoption of the Constitution, the
ordinary office of this writ was to bring
causes from the inferior to the superior
jurisdiction before trial. its exceptional
use was to remove causes after trial.


1t is decided in Murfree VS.. Leeper,
lst Tenn, p. /, that the Legislature could
not restrict their power without express
negative words. This was before the
adoption Of the Constitution, and when
it was mere common law right. When
the right to the writ became constitu-
tional the Legislature could not restrict
even by express words, though they
might regulate. Yerger, 2l-23.


The Legislature have not, however,
attempted to take away the right to OBJ
tain writ of certiorari before trial.


From these authorities it follows that
this Court has authority to grant the
writ of certiorari in this cause, and that
the exercise Of this authority has not
been premature.


The motion to dismiss must therefore
be overruled.


sWT IRv1SG H1sEY, Judge.


Feliz Fritz is a remarkable man,
though he has been all his life only a
waiter in Paris cafe. He is possessed
Of q wonderful memory, and is q cyclic
pedia Of military facts and gossip.