Argument for Plaintiffs in Error.

229 U. S.

of proceedings. Harris on Cert., §§ 17-21; 4 Enc. P. & P. 9, and see Duggan v. McGruder, 12 Am. Dec. 536.

In the Federal courts it is in the nature of a writ of error to bring up after judgment the proceedings of an inferior court or tribunal whose procedure is not according to the course of the common law. Harris v. Barber, 129 U. S. 366–369; Dist. of Col. v. Brooke, 29 App. D. C. 563; Dist. of Col. v. Burgdorf, 6 App. D. C. 465.

The test of the question whether a proceeding is reviewable upon certiorari is not what are the usual functions exercised by the tribunal, but what is the character of the proceedings sought to be reviewed. Where an executive officer is charged with duties of a judicial nature the action can be so reviewed. Duggan v. McGruder, 12 Am. Dec. 527, 536; Cunningham v. Squires, 2 W. Va. 422, 424; State v. Ansel, 76 So. Car. 395, 412-414.

The proceeding before the Postmaster General in this case was quasi-judicial in character. It involved a hearing and the ascertainment of facts upon evidence. It resulted in a decision based upon alleged satisfactory evidence. United States v. Burton, 131 Fed. Rep. 552, 556.

Public officers whom the court has power by injunction to restrain are ministerial and not judicial; certiorari is an appropriate legal remedy and there is no necessity for resort to equity. Western R. R. Co. v. Nolan, 48 N. Y. 513, 518.

Where there is technically no record, the proceedings and orders in the nature of a record can, as a rule, alone be regarded. But the evidence upon a disputed jurisdictional fact is reviewable, as well as every issue of law upon the question of jurisdiction. Not only the record, but the evidence to support jurisdiction must, when necessary, be returned. Whitney v. Board, 14 California, 479, 500; People v. Goodwin, 1 Selden (N. Y.), 568, 572; Stone v. Mayor, 25 Wend. (N. Y.) 157, 170; see also People v. Assessors, 39 N. Y. 81, 88; People v. Assessors,

229 U. S.

Argument for Defendant in Error.

40 N. Y. 154, 158; People v. Allen, 52 N. Y. 538, 541; People v. Board of Police, 39 N. Y. 506, 518; People v. Brooklyn, 103 N. Y. 370.

All parties interested and aggrieved are entitled to the writ. It is not necessary that a petitioner for a certiorari should be a party of record, but only that he should be interested in the subject-matter upon which the record rests. Dyer v. Lowell, 30 Maine, 217, 220; Hemmer v. Bonson (Ia.), 117 N. W. Rep. 257, 259.

If the exercise of a sound judicial discretion requires that one thus injured ought to have the writ it is an abuse of authority to refuse it. State v. Chittenden, 127 Wisconsin, 468, 470, Syl. 4.

Where individual rights are affected in a case in which there are no formal parties and no appeal or other remedy for an excess of jurisdiction exists, a review by certiorari is allowed to those who are bound by the proceedings. Elliott v. Superior Court, 144 California, 501, 508; Campau v. Button, 33 Michigan, 525; Wilson v. Bartholomew, 45 Michigan, 41; Cowing v. Ripley, 76 Michigan, 650; Pingree v. Commissioners, 30 Maine, 351; State v. Snedeker, 30 N. J. L. 80; People v. Ford, 112 N. Y. S. 130; Clary v. Hoagland, 5 California, 476; State v. Rose, 4 N. Dak. 319, 329. The writ should have been granted as of right. Matthews v. Matthews, 4 Ired. L. (N. C.) 155; State v. Bill, 13 Ired. L. (N. C.) 373; Queen v. Justices, L. R. 5 Q. B. 473; Re Lord Listowel's Fishery, 9 Ir. C. L. 46 Q. B.

Even lapse of time will not bar ordinarily in meritorious cases. Barnard v. Fitch, 48 Massachusetts, 605, 609; Drainage Commissioners v. Volke, 163 Illinois, 243, 248; Sturr v. Elmer (N. J.), 67 Atl. Rep. 1059; State v. Hudson City, 29 N. J. L. 115.

Mr. Assistant Attorney General Adkins, with whom Mr. Louis G. Bissell was on the brief, for defendant in

error:

Argument for Defendant in Error.

229 U.S.

Certiorari does not lie to review administrative action by cabinet officers. Bates & Guild Co. v. Payne, 194 U. S. 106; Decatur v. Paulding, 14 Pet. 497, 515; Gaines v. Thompson, 7 Wall. 347; Marbury v. Madison, 1 Cranch, 137; Marquez v. Frisbie, 101 U. S. 473; Riverside Oil v. Hitchcock, 190 U. S. 316; United States ex rel. v. Black, 128 U. S. 40; United States v. Young, 94 U. S. 258.

At common law and in the District of Columbia a writ of certiorari runs to an inferior tribunal only to ascertain whether that tribunal had jurisdiction and has observed due process of law. Basnet v. Jacksonville, 18 Florida, 523; Bradshaw v. Earnshaw, 11 App. D. C. 495; District of Columbia v. Burgdorf, 6 App. D. C. 471; Harris v. Barber, 129 U. S. 366; Hendley v. Clark, 8 App. D. C. 165; In re Schneider, 148 U. S. 162; People v. Lindblom, 55 N. E. Rep. 358 (Ill.); Phillips v. Welch, 12 Nevada, 158; Reaves v. Ainsworth, 219 U. S. 297; The King (Martin) v. Mahoney, 1910, 2 Irish Law Reports, 695, 727 et seq.

In some jurisdictions the scope of the writ has been enlarged to include questions of law arising on the record. Keenan v. Goodwin, 17 R. I. 649; People v. Board of Police, 39 N. Y. 506.

It is practically universally agreed that the case is not reviewable on the merits, and that a writ of error is inappropriate to settle disputed questions of fact. Water Co. v. Commissioners, 112 Massachusetts, 206; Harris v. Barber, 129 U. S. 366; Imperial Water Co. v. Supervisors, 120 Pac. Rep. 780, 786; Rawson v. McIlvaine, 49 Michigan, 194; State v. Common Council, 53 Minnesota, 238; State v. Hudson, 32 N. J. L. 365.

If the court has power on certiorari to review questions of law, it will not interfere with decision of the Postmaster General. Bates and Guild Co. v. Payne, 194 U. S. 108; Smith v. Hitchcock, decided this term.

The action of the Postmaster General cannot be quashed

on writ of certiorari. He had jurisdiction to issue the fraud orders. Public Clearing House v. Coyne, 194 U. S. 497; School of Magnetic Healing v. McAnnulty, 187 U. S. 94; Rev. Stat., §§ 3929, 4041.

The fraud order issued by Postmaster General was correct in law, and his findings of fact were supported by ample evidence. Harris v. Rosenberger, 145 Fed. Rep. 449; Public Clearing House v. Coyne, 194 U. S. supra.

The evil sought to be remedied is the same in this case as in Durland v. United States, 161 U. S. 306, 313.

As to what constitutes scheme to defraud, see Branaman v. Harris, 189 Fed. Rep. 461; Durland v. United States, 161 U. S. 306; Harris v. Rosenberger, 145 Fed. Rep. 449; Horn v. United States, 182 Fed. Rep. 721.

The trial court properly refused the writ on the merits following the hearing on petition and answer. The writ does not issue as of right, but in the discretion of the court. District of Columbia v. Brooke, 29 App. D. C. 563; Ex parte Hitz, 111 U. S. 766; Hyde v. Shine, 199 U. S. 62; People v. Board of Assessors, 39 N. Y. 87.

The practice is followed in many jurisdictions. Am. Const. Co. v. Jacksonville Ry., 148 U. S. 372, 388; Water Co. v. County Commissioners, 112 Massachusetts, 206; Ex parte Dugan, 2 Wall. 134; Walbridge v. Walbridge, 46 Vermont, 617.

Similar procedure is sanctioned by this court for other extraordinary writs. Ex parte Webb, 225 U. S. 663; Ex parte Yarborough, 110 U. S. 651, 652; In re Baiz, 135 U. S. 403; Riverside Oil Co. v. Hitchcock, 190 U. S. 316.

MR. JUSTICE LAMAR, after making the foregoing statement, delivered the opinion of the court.

This case is the first instance, so far as we can find, in which a Federal court has been asked to issue a writ of certiorari to review a ruling by an executive officer of the

United States Government. That at once suggests that the failure to make such application has been due to the conceded want of power to issue the writ to such officers. For, since the adoption of the Constitution, there have been countless rulings by heads of departments that directly affected personal and property rights and where the writ of certiorari, if available, would have furnished an effective method by which to test the validity of quasijudicial orders under attack. The modern decisions cited to sustain the power of the court to act in the present case are based on state procedure and statutes that authorize the writ to issue not only to inferior tribunals, boards, assessors and administrative officers, but even to the Chief Executive of a State in proceedings where a quasi-judicial order has been made. But none of these decisions are in point in a Federal jurisdiction where no statute has been passed to enlarge the scope of the writ at common law.

In ancient times it was used to compel the production of a record for use as evidence; more often to supplement a defective record in an appellate court, and later, to remove, before judgment-Harris v. Barber, 129 U. S. 366, 369-a record from a court without jurisdiction and with a view of preventing error rather than of correcting it. When later still its scope was enlarged so as to make it serve the office of a writ of error, certiorari was granted only in those instances in which the inferior tribunal had acted without jurisdiction, or in disregard of statutory provisions. But in those cases the writ ran to boards (Reaves v. Ainsworth, 219 U. S. 296), officers, tribunals and inferior judicatures, whose findings and decisions, even though erroneous, had the quality of a final judgment, and there being no right of appeal or other method of review, the extraordinary writ of certiorari was resorted to from necessity to afford a remedy where there would otherwise have been a denial of justice. But in all those cases it ran