Conners v. City of Knoxville

Mb. Justice Williams

delivered the opinion of the Court.

This action was begun in the circuit court by a petition for a writ of certiorari, seeking to review and to quash an order or decision passed in the form of a resolution by the board of commissioners as the governing body of the city of Knoxville, which order had the effect to oust or remove petitioner from the office of chief of police of that city.

*431 The petition was dismissed on the ground that Con-ners’ remedy was not by certiorari, but by appeal, and that no sufficient reason for failure to appeal was assigned in the petition.

This ruling was affirmed by the court of ’ civil appeals, and the case is before this court for review.

It appears from the petition that on the 23d day of November, 1915, the board of commissioners, through a majority of the board, attempted to remove the petitioner from the office of chief of police by the adoption of a motion in the following words:

“I move that Ed. D. Conners be transferred from the office of chief of police to the office of market master and that the salary of market master be increased to ninety dollars per month and be so fixed in the budget, the welfare of the service requiring it.”

The above order was passed without any notice having been given to Conners, without any charges having been preferred against him, and without any trial to ascertain whether cause for removal from office existed.

The charter of the city provides that officers such as he shall be subject to removal from office for misconduct or failure to discharge the duties of the office, by a majority vote of the board of commissioners.

There was much argument at the bar and in briefs respecting whether the city charter gives to a chief of police the right of appeal from a decision effecting his removal from office; but, in the view .we take of the case, that contention becomes immaterial.

*432 What is demandable by the official when it is sought to deprive him of his office is clearly indicated in Hayden v. Memphis, 100 Tenn., 582, 588 , 47 S. W., 182 , where it is held that the municipal tribunal must act with some degree of conformity to the rule of the common law.

“ There must be notice given to the accused of the time when, and the place where, the trial body will meet, in order that he may be present in person, and with witnesses. . . . Then there must be a charge, or charges', against him, stated with substantial certainty. ’ ’

In that case, the remedy of the aggrieved officer by certiorari was upheld, but the statute did not give a right of appeal in terms.

Does the common-law writ of certiorari, as distinguished from the statutory writ, depend for issuance on the grant or nongrant of the right to appeal?

“Certiorari” at common law performed the function of- aid to a review and supervision of the proceedings of inferior boards and tribunals by a superior tribunal, not taking the place of appeal or writ of error, but bringing up the entire record in order to. a determination whether there had been an absence or excess of jurisdiction, or a failure to proceed according to the essential requirements of the law:

By the Constitution of 1870, art. 6, section 10, following the earlier Constitutions, it is provided that *433 judges of inferior courts of law and equity shall have the power in all civil cases - to issue writs of certiorari on sufficient cause.

By the Code it is provided (Shannon, section 4853, 4854) as follows:

“The writ of certiorari may he granted whenever authorized by law, and also in all cases where an inferior tribunal, board, or officer exercising judicial functions has exceeded the jurisdiction conferred, or is acting illegally, when, in the judgment of the court, there is no other plain, speedy, or adequate remedy.”

“Certiorari lies: (1) On suggestion of diminution;. (2) where no appeal is given; .(3) as a substitute for appeal; (4) instead of audita querela; (5) instead of writ of error.”

The writ of certiorari was a remedy in civil cases at common law, the contention of the counsel of the city to the contrary notwithstanding. It may be true that its earliest use was on the crown, or criminal, side of the Court of King’s Bench, but if so its use on the civil side later came into general use.

It was said by this court in Tennessee Railroad Co. v. Campbell, 109 Tenn., 645 , 75 S. W., 1012 :

“The writ of certiorari does not owe its existence to constitutional provision or statutory enactment. It is a common-law writ, of ancient origin, and one of the most valuable and efficient remedies which come to us with that admirable system of jurisprudence. This court ... is not restricted from its use by section 10 of article 6 of. the Constitution, providing *434 that the judges of inferior courts of law and equity shall have power to issue it in civil eases to remove them from any inferior jurisdiction into a court of law. This provision was only intended as a guaranty of the continuance of a power with which these judgés were already vested.”.

Our statute was not intended to work a change in the common-law function of the writ, as a supervisory or “superintending writ,” as it has been called. The statute specifically and affirmatively provides that certiorari lies “where no appeal is given,” but it does not stipulate that provision for an appeal shall, in all cases, be deemed an adequate remedy, binding or restraining “the judgment of the court” as to its being a speedy and adequate remedy in cases where an “inferior tribunal, board, or officer exercising judicial functions has exceeded the jurisdiction conferred, or is acting illegally.”

Counsel for the city argue the case as if the only test of the right to certiorari was that of a total lack of jurisdiction of the board of commissioners to try a case of removal. This is incorrect; the writ may be granted where jurisdiction exists, actually or potentially, but where also: (a) There has been in fact an exercise of the judicial function in excess of jurisdiction; or (b) the board has acted illegally.

Peculiarly apt in respect to this -situation is this quotation from 5 R. C. L. p. 252, sec. 4:

“It may be that illegality of action, where the court has jurisdiction, may sometimes be 'tested by *435 certiorari, and in such a case the want of a plain, speedy, and adequate remedy by appeal may he important. But where the action complained of is in excess of jurisdiction of the court, it is doubtful whether the remedy by appeal is ever adequate.”

By our statute illegality of action and excess of jurisdiction appear to he placed on the same plane.

In neither event is the court deprived of its judgment in respect of the inadequacy of appeal as a mode of relief and of its right to issue common-law certiorari. On the contrary, the legislature in the-statute left the court to judge of that matter, and the fact of the existence of a right of appeal was not undertaken to he imposed as a statutory bar in such a case to the exercise of that" judgment in respect of the issuance of a common-law writ of certiorari.

We, need not, therefore, determine whether, under the constitutional provision for the court’s grant of the writ in civil cases of the character here involved, it would he competent to the legislature to limit the judgment of the court as to the. remedial adequacy of, and impose on it the remedy by, appeal as the sole one. The legislature has not attempted to do so. See, in this- connection, Duggan v. McKinney, 7 Yerg. (15 Tenn.), 21, and cases cited in note 50 L. R. A., 798, and note 50 L. R. A., 111.

“Excess of jurisdiction,” as set forth in the statute, as distinguished from absence of jurisdiction, means that an act, though within the general powers of the tribunal or hoard, is not authorized, and in *436 valid with respect to the particnlar proceeding, because the conditions which alone’ authorize the exercise of the general power in respect of it are wanting. 2 Words and Phrases (Second Series), 369.

But if we treat the case as one in which there was absence of jurisdiction, and the order of the board as void on that account, the result would be the same.

In Ex parte Knight, 3 Lea (71 Tenn.), 401, Judge McFarland expressed the view:

“If, however, an attempt should be made to remove an officer without authority or color of law, that is, if the judge so far depart from the mode pointed out by the statute as to render his action void, then, according to the case of Wade v. Murry, 2 Sneed, 50 , the remedy would be by certiorari to quash the proceeding in the circuit court, that court having this jurisdiction, by virtue of its general re-visory powers, over inferior tribunals.”

The case of the State ex rel. v. Guinotte, 156 Mo., 513 , 57 S. W., 281 , 50 L. R. A., 787, is in point. With respect to the question- as to whether certiorari will lie where an appeal might have been prosecuted, the court’said:

“The statement that certiorari will not issue where either appeal or error goes, though frequently met with in text-writers, and in some reports, is neither strictly true nor accurate. There are marked exceptions. Thus, where the exigencies of the case are such that the ordinary methods of appeal or error may not *437 prove adequate, either in point of promptness or completeness, so that a partial or total failure of justice may result, then certiorari may issue. Harris Cer-tiorari, sec. 54. The rule that appeal or writ of error existing bars certiorari is subject to the qualification that such other means of redress, in order to form a bar, should be adequate to meet the necessities of the case. Thus the right of appeal, while generally held an adequate means of correcting mere errors committed in the exercise of jurisdiction, may prove inadequate to redress or prevent a wrong done in the. absence or excess' of jurisdiction. 2 Spelling, Extraordinary Relief, secs. 1918, 1963; Memphis & C. R. Co. v. Brannum, 96 Ala., 461 , 11 South., 468 ; State ex rel. Vaughn v. Ashland, 71 Wis., 502 , 37 N. W., 809 ; Rex v. Standard Hill, 4 Maule & S., 378.”

See, also, annotation of the above case 50 L. R. A., 787 et seq.

Our case of Houser v. McKennon, 1 Baxt. (60 Tenn.), 287, is to the same effect, in its holding that though the judgment of a justice of the peace be absolutely void because for a sum above his jurisdiction, it may be reviewed on certiorari, notwithstanding a failure to appeal. The court said:

“The defendant does not lose his right to contest it by failing to appeal; having no validity, because of want of jurisdiction, the defendant may bring it into the circuit court to have the proceedings quashed, without giving a reason for having failed to appeal.”

*438 In 5 R. C. L., 257, it is said:

“And where the inferior eonrt is guilty of proceeding in the absence, excess, or usurpation of jurisdiction, certiorari may he resorted to for the purpose of keeping that court within its proper hounds. There are many authorities which hold that is is the inadequacy, and not the mere absence, of all other legal remedies, and the danger of a failure of justice without it, that must - usually determine the propriety of this writ. ’ ’

Certiorari of the character indicated, as contra-distinguished from statutory certiorari, was award-able in this case to remove the proceeding from the inferior board for the purpose of revision, not for a trial de novo, but for review of the record to be certified from the inferior tribunal, and for judgment of quashal or affirmance.

If it be conceded that Conners was not entitled to the common-law writ,-we have presented a case of patent hardship on him, if it be conceded also that the action of the board of commissioners was void. An appeal with a consequent trial de novo would deprive him of his right to have notice, and a trial before the board in respect to the existence of cause under charges preferred before that tribunal. He might have demonstrated there that no cause for removal existed. Let us assume that an appeal would have availed to give him one trial in the circuit court. He was entitled to two. And what, on appeal, of his right to notice in advance of any hearing; and *439 who in the circuit court is to formulate the charges against him for the first time?

As was said by the supreme court of Alabama in Independent Publishing Co. v. American Press Association, 102 Ala., 475, 493 , 15 South., 947 , 953:

“For the defect in the record, at common law, the petitioner had the right to have the judgment of the supervisory court, quashing the judgment of the lower court. He was not required to resort to any supposed remedy, the result of which necessarily destroyed this legal right. The common-law writ of certiorari was the only remedy left to him, by which the defect in the judgment could be reached, and a judgment quashing it could be rendered. If he resorted to an appeal he made himself a party, brought himself into court, . . . must then submit to a trial de novo, without having a judgment, void for want of legal notice, quashed.”

See, also, Abney v. Clark, 87 Iowa, 728 , 55 N. W., 6 ; State v. City of Fond du Lac, 42 Wis., 295 ; 1 Bailey on Habeas Corpus and Certiorari, 653 et seq.

We hold, therefore, that the circuit -judge and the court of civil appeals were in error in holding that certiorari was not awardable, and in not quashing the proceeding in the board of commissioners as being in excess of jurisdiction, illegal, and void, if the same shall appear to be as Conners states in his petition.

Reversed, and remanded to the circuit court, with direction that the writ be issued, so that a judgment may be rendered in accord with what is herein held.