Opinion
Opinion, October 12, 1937.
CERTIORARI. PLEADING AND PRACTICE.
Petitioner in certiorari must allege, and establish to the satisfaction of the court to which the application is made, that substantial justice demands that the writ should issue. Allegation in certiorari must show that the record, a review of which is asked, is necessarily inaccurate. Consideration can only be given, on certiorari, to such errors or defects as appear on the face of the record of the tribunal below.
On exceptions. Certiorari to quash so much of the record of the election hearing in the Town of Hermon on September 14, 1936, as relates to the vote on the local option question of licensing the sale of malt liquor under P. L. 1935, Chap. 157. Respondents filed demurrers. Demurrers adjudged good. Petitioners excepted. Exceptions overruled. Case fully appears in the opinion.
Ross St. Germain, for petitioners.
Fellows Fellows, Mayo Snare, Sanford L. Fogg, Deputy Atty. General, for respondents.
SITTING: DUNN, C. J., STURGIS, BARNES, THAXTER, HUDSON, MANSER, JJ.
This was a petition by two persons, alleging themselves property owners, taxpayers, and voters in Hermon, for certiorari to quash so much of the record of the election held in that town on September 14, 1936, as relates to the vote on the local option question of licensing the sale of malt liquor. P. L. 1935, Chap. 157.
The petitioners claim that, notwithstanding the conduct of election officials had invalidated two absentee ballots, such ballots were, nevertheless, intentionally received, were erroneously included in the count of votes, and find reflection in the return of the election, showing its result "No," when it was, and should be "Yes."
The respondents, one the Secretary of State, the other the clerk of the town, each for himself, demurred to the petition.
As causes for demurrer, want of essential allegations, specifically relative to the record sought to be quashed, a failure to aver particular errors or irregularities, unavoidably inexact, as well as the omission from the petition of a copy of the record, or some sufficient reason therefor, were assigned.
Both demurrers were adjudged good. The case is forward on exceptions.
Certiorari is a common-law writ, but provided for by statute. R. S., Chap. 116, Sec. 13.
The petitioner in certiorari must allege, and establish to the satisfaction of the court to which the application is made, that substantial justice demands that the writ should issue.
Allegation must show that the record, a review of which is asked, is necessarily inaccurate. This is because, if the writ is granted, the court must determine, upon the record, whether or not the proceedings of the subordinate tribunal or officer, exercising judicial powers or functions, are legal and regular. On certiorari, the object of which is only to bring up the record, such errors or defects alone as appear on the face of such record can be considered. Ross v. Ellsworth, 49 Me. 417; Emery v. Brann, 67 Me. 39; Hewett v. County Commissioners, 85 Me. 308, 27 A. 179; Stevens v. County Commissioners, 97 Me. 121, 53 A. 985; Rogers v. Brown, 134 Me. 88, 181 A. 667; Jellerson v. Board of Police, 134 Me. 443, 187 A. 713.
Entry of the exceptions availed nothing.
Exceptions overruled.