This Court has jurisdiction to issue writs of certiorari, and all other writs not specially provided for, necessary to enforce the due administration of justice and right throughout the state; 29 O. L. 56. The writ has been long in common use, both to examine the proceedings of justices, those of the county commissioners, and such proceedings of the Court of Common Pleas as are not properly reached by a writ of error. The provision relied upon in favor of the motion, 29 O. L. 269, that the decision of the court in such cases “shall be final,” does not affect the right to inquire whether their decision has been legally made. The provision for a. writ of error, 26 O. L. 77, is that final judgments shall he examined upon writs of error, &c. Appeals are taken from final judgments. The terms, shall be final, must be understood as describing judgments which are legally made, and cannot be understood as legalizing a judgment otherwise without legal efficacy. Motion overruled.
*50*COLLETT, J. inclined to the opinion that there was no error [50 in the proceedings of the Court of Common Pleas, and that, under the statute, the court had a right to proceed in a summary way to judgment, without pleading, issue, or jury, and therefore that the judgment and order should be affirmed.
WRIGHT, J. was of opinion that the proceedings below were erroneous. The going on to try and settle a cause without issue or jury where the facts were litigated and in dispute, he understood to be a violation of the 8th section of the 8th article in the constitution, which provides, “that the right of trial by jury shall he inviolate.” He was unwilling to construe a legislative act so as to lead to that result, if it could be avoided. If the contradiction between the legislative provision and the constitution is palpable, he would feel bound by the constitution, as of paramount authority. It is doubtful if the statutory provision in the 29 O. L. 269, sec. 16, embraces any claim against the county, the corporate body which the commissioners represent, or if it does more than provide for appeals, where the commissioners act exclusively upon the interest of third persons. It would be a singular state of things if the county, or its officers, the commissioners, should be deprived of power to litigate claims upon the county, because they had refused to pay the demand, on the ground that it was unjust, because the law made it the duty of the commissioners to audit and adjust it, if valid. No express provision is found for appealing a cause situated like this, and it would be better to leave the claimants to the ordinary course of suit, to settle their demand. But, if the law does embrace this case, then it would be better to compel the parties to make up an issue, and go to trial before a jury, as other parties are in other suits. The order of the court, in directing an order to the commissioners, to issue an order upon the treasurer to pay the money, is without authority, and erroneous. I think the whole proceedings erroneous.
The Court being divided in opinion, the case was reserved for the Court in Bank. That court reversed the judgment of the Court of Common Pleas. Reserved to Court in Bank and reported in 5 O.490.