Board of Supervisors v. Magoon

Citations

• 109 Ill. 142

Syllabus

<p>1. Certiorari—at common law—not a writ of right, as to private persons—its proper office. At common law the writ of certiorari was used principally in criminal cases, to remove them from an inferior tribunal to the court of King’s Bench for trial. The writ went as a matter of right on the application of the Crown, but when made by the defendant he was required to show cause. As to a private person, the writ was not a writ of right, but cause had to be shown by the petition.</p> <p>2. The writ was also used to bring before the court of King’s Bench the record of commissioners of the poor, and other rates, and in cases where an individual was sued in a court having no jurisdiction, and no appeal or writ of error was given by law, and in cases where the jurisdiction had been exceeded, or it appeared that the. proceeding was against the law.</p> <p>3. Same—how far discretionary. The allowance of a common law writ of certiorari is largely a matter of discretion with the court. This discretion, however, is not an arbitrary one, but is one subject to review by a court of review.</p> <p>4. Same—at whose instance the writ will lie—as to questioning proceedings instituted by the petitioner. A person who prosecuted a petition to alter a road over his land before the commissioners of highways, and was present at every step taken, will not be allowed by certiorari to question the legality of the proceeding in case the decision is adverse to him. If he acts in the matter as though the proceeding was in conformity to the law, he will be bound by his acts, and estopped from questioning it§ legality or regularity.</p> <p>5. Highways—notice—estoppel. A party seeking the alteration of a road over his land, by appearing before the highway commissioners at their meeting to determine whether to grant the application, and is heard by them, admits that proper notice of the time and place of the hearing was given, and he will thereafter be estopped from denying the same.</p> <p>6. Where