I dissent. On September 18, 1930, some 36 county attorneys' informations against defendants numbering in all 26 were filed in the Jefferson District Court, each in two counts against two to four defendants, charging conspiracy and obtaining property by false pretenses. Later an indictment was returned in another case against three of the same defendants, also charging said offenses. One of the cases went to trial, resulting in a verdict for defendants. Thereupon the State asked for a change of place of trial in each of the remaining cases "for the reason that the State cannot receive a fair and impartial trial in Jefferson County, Iowa, owing to *Page 838 excitement and prejudice in said county against the prosecution as appears in the affidavit attached hereto."
The defendants filed resistance on the ground that the statute providing for a change of venue on application of the State is in violation of Section 9, Article I, of the Constitution, and filed counter-affidavits in which the affiants allege that "a fair and impartial trial can be had by the State in each and all of said causes in Jefferson County, Iowa." Both sets of affidavits followed the language of the statute.
The total number of affiants on both sides, exclusive of those of the State's attorneys, is 1123.
The district court held that the State's showing in the light of the resistance was insufficient to satisfy it that there was any excitement or prejudice against the State that would prevent the State from having a fair and impartial trial in Jefferson County, and hence overruled the State's application for a change of venue.
The venue of criminal cases in Iowa is a matter of statutory regulation.
The statute permitting the State to obtain a change of venue in a criminal case is a modern innovation in criminal procedure. Such a statute has, however, been adopted in several of the states. See, 16 C.J., p. 202.
It is conceded that the State has no right of appeal from the ruling on the motion for a change of venue and an appeal by the State after a judgment of acquittal would be futile, except to establish a rule of law. When the legislature enacted the statute in question, giving the State the right to apply for a change of venue in a criminal case, it made no provision for a review of the action of the trial court at the instance of the State, as it might well have done.
The right of appeal rests wholly on statute. Eller v. Eller,185 Iowa 1053; Peter Schoenhofen Brewing Co. v. Giffey, 162 Iowa 204. Appellant contends that inasmuch as appeal is not practically available to the State a review by certiorari exists of necessity to do justice to the State.
The Constitution (Article V, Section 4) declares that this court:
"* * * shall have power to issue all writs and process *Page 839 necessary to secure justice to parties, and exercise a supervisory control over all inferior judicial tribunals throughout the state."
The constitutional provision is a recognition of the common law power of this court in the exercise of its original jurisdiction to issue the prerogative writs known to the common law. The writ of certiorari is such a prerogative writ. We have jurisdiction to issue the writ in a proper case under our constitutional power. No question is raised of our power to issue a writ of certiorari in the instant case. The all-important question is: what alleged errors may we consider and review in this proceeding in certiorari? Certainly the constitutional provision giving this court "power to issue writs and process necessary to secure justice to parties" does not give us the power to proceed under such writs and process in any other manner than according to the established rules of law regarding such writs and process. For instance, we can issue a writ of habeas corpus, but under such a writ we cannot assess damages, even though justice would be effectuated thereby. Even on an ordinary appeal in a criminal case we cannot consider errors that were not properly preserved in the lower court, even though they may appear as errors when presented in this court. State v. Higgins, 192 Iowa 201, and cases cited therein. The power to "exercise supervisory control over inferior judicial tribunals throughout the state" does not mean that we can act in any other manner than that pointed out by proper legal procedure. It does not mean that we can arbitrarily interfere with the conduct of inferior tribunals and dictate to such tribunals what action they shall take. This court must proceed wholly in accord with the well-established rules of legal procedure.
In its last analysis, the question for our determination is simply this: what acts may be reviewed by this court under a writ of certiorari?
Code section 12456 is as follows:
"The writ of certiorari may be granted when authorized by law, and in all cases where an inferior tribunal, board, or officer exercising judicial functions is alleged to have exceeded his proper jurisdiction, or is otherwise acting illegally, and there is no other plain, speedy, and adequate remedy." *Page 840
This statute was first enacted in the Code of 1851, as section 1965. It has many times been considered by this court.
As early as Edgar v. Greer, 14 Iowa 211 (1862) we recognized that the writ was proper to review the action of an inferior tribunal when acting in excess of its jurisdiction.
In Smith v. The Board of Supervisors, 30 Iowa 531, we said:
"Certiorari is a common-law writ, issued from a superior court directed to one of inferior jurisdiction, commanding the latter to certify and return to the former the record in the particular case."
We also said:
"This power of equalization being conferred upon the board, to be exercised by them upon their judgment and belief of the facts in each particular case, their discretion cannot be controlled or reviewed on certiorari. While they act within their jurisdiction and commit no illegalities, their proceedings, though erroneous, cannot be corrected on certiorari.
"The ground of complaint in this case is, that the board raised some of the assessments too high. We have seen that the law confers upon them the power to raise or reduce the assessments as they may believe them too low or too high. The complaint, then, is, that, in exercising their lawful authority over a subject within their jurisdiction, the board has committed errors of fact. These are not such illegalities as may be corrected oncertiorari."
In State v. Roney, 37 Iowa 30, we said:
"If there is any remedy against an erroneous or wrongful judgment in such case, it must be either by writ of certiorari, writ of error, or appeal. The former only lies where the tribunal to which it is directed is exceeding its proper jurisdiction or otherwise acting or proceeding illegally. Rev., sec. 3487. But we have seen that under our statute, the justice had jurisdiction to make the order and render the judgment; and if he was only mistaken upon the weight or sufficiency of the evidence, such mistake could only be an error of judgment, and would not come within the meaning of the term `acting illegally.' The writ ofcertiorari is never used to correct a mere error, but only *Page 841 to test the jurisdiction of the tribunal and legality of its action. No remedy, therefore, could be afforded against such judgment by means of the writ of certiorari."
In Tiedt v. Carstensen, 61 Iowa 334, we said:
"The proceeding by certiorari is intended as a remedy whereby the superior court may inquire into the jurisdiction of the inferior tribunal or officer, and determine whether the tribunal or officer `is acting illegally.' In this case, there is no question of jurisdiction. We are, therefore, only to inquire, when is a tribunal `acting illegally' in the contemplation of the statute? When the law prescribes proceedings to be had by an officer or tribunal in cases pending before them, the omission of such proceedings is in violation of law, and the court or officer omitting them would, therefore, act illegally. In a word, if a tribunal, when determining matters before it which are within its jurisdiction, proceeds in a manner contrary to law, it acts illegally. But if a discretion is conferred upon the inferior tribunal, its exercise cannot be illegal. If it be clothed with authority to decide upon facts submitted to it, the decision is not illegal, whatever it may be, if the subject matter and the parties are within its jurisdiction; for the law entrusts the decision to the discretion of the tribunal. From this brief statement, it will be plainly seen that the statute does not contemplate that decisions of inferior tribunals upon questions of fact may be reviewed by the writ of certiorari. The distinction between erroneous proceedings which are termed `illegalities,' and erroneous decisions of fact, are obvious. See Smith v. Board of Supervisors, 30 Iowa, 531; McCollister v. Shuey et al., 24 Iowa 362; Jordon v. Hayne et al., 36 Iowa 9."
In Hildreth v. Crawford et al., Commissioners of Pharmacy,65 Iowa 339, we said:
"The competency and sufficiency of the evidence were before defendants for consideration, and they did not act illegally or without jurisdiction in deciding thereon. They may have erred in their decision, but their error cannot be reviewed uponcertiorari."
In Polk County v. The City of Des Moines, 70 Iowa 351, we said: *Page 842
"It is claimed by the appellant, however, that the action of the board is illegal, because of the motive or purpose that prompted it. * * * That the motive was wrongful will be conceded, but we are of the opinion that the action of the board was not `illegal' in the sense in which that term is used in the section of the Code quoted above. The board was clothed with authority to decide whether the assessment should be diminished. A discretion was conferred upon it by the statute. The error committed by it was as to the order which should be made upon the facts submitted to it. An error of that character cannot be corrected by proceeding by certiorari."
In Iowa Eclectic Medical College Association v. Schrader,87 Iowa 659, we said:
"The inquiry in this kind of proceeding is whether the defendant has `exceeded his proper jurisdiction, or is otherwise acting illegally.' Code, section 3216. When the defendant has jurisdiction, and is given a discretion, the courts can not, oncertiorari, inquire into the correctness of its decisions upon matters of fact, nor review the exercise of the discretion given."
In Finn v. Winneshiek District Court, 145 Iowa 157, we said:
"It (certiorari) is not intended to supplant the ordinary remedy of appeal, and will not lie to correct rulings of an inferior tribunal which are simply erroneous."
In Davis v. District Court of Allamakee County, 195 Iowa 688, we said:
"It is discretionary with the court whether a rule shall be entered, and, so far as the court confines its ruling within the discretion allowed by statute, or it is merely erroneous, it is not subject to review in this court by an original proceeding incertiorari."
In McCarthy Company v. Dubuque District Court, 201 Iowa 912, we said:
"The writ will never be granted to review an act by such inferior tribunal which involved the exercise of discretion."
In Dickey v. Civil Service Commission, 201 Iowa 1135: *Page 843
"This court has repeatedly held that the writ presents only a question of law, and does not entitle the petitioner to have the facts reviewed."
We might continue quotations from our own decisions at great length. They all agree that under the writ of certiorari this court will never review an act of an inferior tribunal which involves the exercise of discretion by that tribunal.
In addition to the cases cited supra, see, also, Butterfield v. Treichler, 113 Iowa 328; Home Savings Trust Company v. Polk District Court, 121 Iowa 1; Davis v. Preston, 129 Iowa 670; Hemmer v. Bonson, 139 Iowa 210; Lehigh Sewer Pipe Tile Co. v. Town of Lehigh, 156 Iowa 386; Dalton v. District Court, 164 Iowa 187; Jewett v. Ayres, Judge, 167 Iowa 431; Timonds v. Hunter,169 Iowa 598; Ebert v. Short, 199 Iowa 147; Shearer v. Sayre,207 Iowa 203; McEvoy v. Cooper, 208 Iowa 649.
In Harris v. Barber, 32 L. Ed. 697, the Supreme Court of the United States, said:
"Certiorari goes only to the jurisdiction. It does not go to any errors of judgment that may have been committed by the justice in the progress of the exercise of that jurisdiction."
In the case involved herein there is no question but that the trial court had jurisdiction to pass on the motion for a change of venue. The statute says (sec. 13818):
"The court, in the exercise of a sound discretion, must, when fully advised, decide the matter of the petition according to the very right of it."
The court acted in the exercise of the very judicial discretion conferred by statute. Its action may have been erroneous, but it was not illegal. We cannot in certiorari review the facts and declare a different result. The General Assembly made no provision for review of the action of the trial court. It placed the discretion to act in that court by the very language of the statute, knowing (at least presumably) that for nearly three quarters of a century we had iterated and reiterated the pronouncement that we could not review acts of discretion by certiorari and that under such a writ we will not consider the facts upon which the lower court exercised its discretion. In this *Page 844 case we must find that the court had jurisdiction of the subject-matter. The court did exercise a discretion, as the statute expressly directs it to do. This was not an illegal act. If the court made a mistake on the facts we cannot review the record in this proceeding and announce a different conclusion on said facts. No such power rests with us in a proceeding in certiorari. However unfortunate, or erroneous, or mistaken the action of the trial court may have been we cannot set it aside by this proceeding in certiorari. What other remedy, if any, is available to the State is not for us to determine in this proceeding. If the State is without the legal right of review of the facts, we cannot grant such right in a proceeding in certiorari.
I think that the writ of certiorari issued herein should be annulled.
Mr. Justice Evans and Mr. Justice Wagner join this dissent.