§ 1126. Return and hearing.

The return consists of duly certified copies of all records or documents affecting the question at issue,233 or the originals of such records or documents, and is made and transmitted by that court or body to whom the writ is directed, to the tribunal issuing it.234 It is the basis of proceedings in connection with the writ and until it is made, no valid judgment or order can be entered by the higher court. If a portion of the record is omitted from the return, the reviewing court may properly permit respondents to supply it by amendment.235

Hearing. The tribunal of review on the hearing is limited ordinarily in its consideration of the questions involved to the jurisdiction of the subordinate court, official or body, to hear and determine the matters decided,236 and in some instances where the

and Brooklyn Bridge" is not such a misnomer as will defeat a certiorari proceeding where the legal corporate name of the respondent was "the trustees of the New York and Brooklyn Bridge."

In re Evingson, 2 N. D. 184, 49 N. W. 733. A writ cannot be directed to an ex official after he has parted with the record sought to be reviewed. State v. City of Fond du Lac, 42 Wis. 287. A writ should run to the common council, not to the city clerk. State v. Weinfurther, 92 Wis. 546, 66 N. W. 702. Where there is a misdirection of the writ, a return by the parties to whom it runs will not give jurisdiction. State v. City of Milwaukee, 86 Wis. 376, 57 N. W. 45. Certiorari assessments for local improvements should be brought against the city council and not against the city and the city clerk.

233 Lowndes County Ct. Com'rs v. Hearne, 59 Ala. 371; Haven v. Essex County Com'rs, 155 Mass. 467, 29 N. E. 1083. A full record of the proceedings of county commission

ers should be returned if the same is not attached to the petition of the writ; it is insufficient to merely file an answer citing matters deemed by the respondents available as a defense. City of St. Paul v. Marvin, 16 Minn. 102 (Gil. 91); State v. Springer, 134 Mo. 212, 35 S. W. 589; State v. Washoe County Com'rs, 12 Nev. 17. The answer or return to a writ of certiorari should show that the inferior board has jurisdiction to make the order which they defend. People V. Wemple, 61 Hun, 83, 15 N. Y. Supp. 446; People v. MacLean, 61 N. Y. Super. Ct. 458, 19 N. Y. Supp. 548. A return should contain a statement in effect that it is complete, otherwise a proper return must be directed.

234 Crawford v. Township Board of Scio, 22 Mich. 405; Nehrling v. State, 112 Wis. 637, 88 N. W. 610.

235 State v. Springer, 134 Mo. 212, 35 S. W. 589; State v. Kansas City, 89 Mo. 34, 14 S. W. 515.

236 Stumpf v. San Luis Obispo County Sup'rs, 131 Cal. 364, 63 Pac.

right is given by statute it may also pass upon the legal correctness of its decision.237 It is confined to the return as transmitted to it and matters outside the record cannot be considered. 238 Oral evidence or affidavits are therefore not admissible upon the hearing.230 The merits of the controversy, as a rule, cannot be passed upon 240 unless especially provided by law.241 A presumption exists in favor of the legality of the proceedings and of the rulings by the lower court or inferior board or official,242 or, to state the

principle in another way, the decision reviewed is entitled on certiorari to the same presumptions that apply to a verdict of the jury on appeal.243 It is necessary to give notice of the issue of the writ and of the time and place of hearing.244

§ 1127. Judgment; miscellaneous.

The judgment should be one of affirmance or a quashing of the writ.245 It affects the validity of the record alone and is to be determined, as already stated, upon its face.

Miscellaneous. On the ground of public policy, costs are not usually taxed against public corporations, but they may be allowed against the respondents in some cases in the discretion of the reviewing court.246 The time of application may be limited by statute,2 247 but where a common-law writ is issued, a mere lapse of time short of the limitation for the prosecution of a writ of error will not deprive one of the right.248

cil of Oconomowoc, 104 Wis. 622, 80 N. W. 942.

243 People v. New York Police Com'rs, 84 Hun, 64, 32 N. Y. Supp. 18; People v. New York Police Com'rs, 93 N. Y. 97.

244 Moore v. State, 96 Ga. 309, 22 S. E. 960; Bowlby v. City of Dover, 64 N. J. Law, 184, 44 Atl. 844.

245 State v. Board of Com'rs of Washoe County, 23 Nev. 247, 45 Pac. 529. The writ will be dismissed where any judgment that might be entered would not be binding upon the real parties interested. Wilkins V. Quarter Sessions of Camden County, 58 N. J. Law, 555, 34 Atl. 935; People v. French, 53 Hun, 637, 6 N. Y. Supp. 431. The writ should be quashed after a failure to present for six years.

246 Town of Camden v. Bloch, 65 Ala. 236; Inhabitants of Stetson v. Penobscot County Com'rs, 72 Me.

17.

247 Carson v. Town of Forsyth, 97 Ga. 258, 22 S. E. 955; Oliphant v. City of Paterson (N. J. Law) 25

Atl. 1098. A petition may be dismissed on account of the laches of the prosecutor. See, also, on the question of laches, Ware v. Borough of Rutherford, 55 N. J. Law, 450, 26 Atl. 933, and State v. Everitt, 23 N. J. Law (3 Zab.) 378.

Wetmore V. Elizabeth City, 41 N. J. Law, 152; People v. Wemple, 61 Hun, 83, 15 N. Y. Supp. 446. The provision in respect to the service of notice within the time prescribed by law is mandatory. People v. Martin, 82 Hun, 1, 30 N. Y. Supp. 1107; People v. York, 47 App. Div. 552, 62 N. Y. Supp. 662; People v. Sutphin, 166 N. Y. 163, 59 N. E. 770; Saucon Tp. v. Broadhead (Pa.) 9 Atl. 63; In re Road in Roaring Brook Tp., 140 Pa. 632, 21 Atl. 411; In re Salem Road, 103 Pa. 250. But see Essex Pub. Road Board V. Speer, 48 N. J. Law, 372, 9 Atl. 197.

248 Drainage Com'rs v. Volke, 59 Ill. App. 283. See, also, Gentle v. Board of School Inspectors, 73 Mich. 40, 40 N. W. 928.

§ 1128. Injunction; definition; general principles.

77249

The statements made in respect to a general discussion of mandamus, certiorari, and other special remedies apply equally to one of the most important, namely, the writ of injunction. A brief statement of the general principles only can be given leaving the practitioner to an investigation of works treating of this special subject alone. An injunction has been defined as "A writ formed' according to the circumstances of the case commanding an act which the court regards essential to justice or restraining an aet which it esteems contrary to equity and good conscience. This definition, it has been said, by a late author,250 "it would be difficult to improve upon, and requires but little or no modifica-tion." "Without the power to prevent as well as to undowrongs, to restrain as well as to compel action, to preserve as well as to reinstate the status of persons and things, courts of equity would possess but little power, and command but little respect as dispensers of justice and arbiters between man and man. The important restraining function is given effect by thegreat extraordinary remedy of injunction, which, may be appropriately termed the strong arm of courts of equity."'251 As previously stated, public corporations are organizations of special and limited powers, their powers exercised in all cases by natural persons acting as their agents, and it necessarily follows, because of the fallibility of human nature, and especially when clothed with great power, that these corporations may equally, with natural persons, so act or threaten to act as to effect great and special injury or damage to property and personal rights. To meet this condition, courts of equity are open equally to protect the rights of private persons from illegal or inequitable acts of public corporations and also to protect the rights of the public against the injury from private persons or public officials. The remedy is generally regarded as a preventive one 252 though in some instances a writ of mandatory injunction will be issued.253 It is also

regarded in respect to its issuance as a discretionary writ; that is, the application is addressed to the sound discretion of the court to be exercised or not according to the circumstances of each case. It is generally refused where justice would be retarded or defeated rather than advanced by granting it.255

§ 1129. When granted; nature or character of injury.

To authorize the grant of the writ it is necessary that the threatened injury be actual and impending, 256 irreparable at law 257 and special or peculiar to the one complaining.258 It is also