Smith v. Council of Oakland

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[482]ter (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.