(dissenting.)
I am unable to agree with my Associates in the conclusion reached by them with reference to the bill of exceptions alleged to have been tendered by appellant to the mayor of appellee city. The only office which a writ of certiorari can serve, whether issued in aid of a pending appeal, or when issued in the nature of a writ of error, is to command the custodian of the records of the court, whose proceedings it is desired to review, to certify the record thereof to the court issuing the writ; and the only *877response such custodian can make to the writ is to certify the record desired to the court issuing the writ, or such portions thereof as may be in his possession, and in event he is unable so to do to show the cause therefor. Had this petition simply alleged that a proper bill of exceptions was on file with the city clerk, the writ of certiorari prayed for, of course, should have been granted; but since it appears on the face of the petition that the paper designated a bill of exceptions, and which the court is requested to command the clerk to certify to it, is not a bill of exceptions, but is in fact a mere nullity, I do not think the court should do the vain and useless thing of issuing the writ, in order to determine that fact from an inspection of the paper itself.
When the court below overrules the demurrer to the petition in accordance with the opinion of my Associates,. appellee will then have the right to traverse the allegations of the petition setting forth what occurred on the trial of the cause by the municipal authorities; and in event he should do so, then, in my judgment, the court below will be powerless to proceed further, for I do not understand my Brethern to hold that it can settle a dispute ' as to what the bill of exceptions should contain. This seems to me to be the logical result of the holding in Greenwood v. Henderson, 84 Miss. 802, 37 So. 745. In tli at case it was held that the court was without power, even by agreement of the parties, to try a cause on the oral testimony of the same witnesses who testified before the city council. Should it become necessary for the court below to settle a dispute as to what the oral testimony before the municipal authorities was, the testimony of the witnesses themselves as to what they in fact did say can be received, so that the court may thus do indirectly what it is without power to do directly.
In Roach v. Tallahatchie County, 78 Miss. 303, 29 So. 93, “the board of supervisors of the county ordered a local option election under the dramshop chapter of the *878Code. Roach, desiring to appeal from the order for the election, presented a hill of exceptions to the president of the hoard of supervisors, embodying, as he averred, the evidence upon which the board'acted in directing the election. This bill the president refused to sign, and thereupon Roach obtained the signatures thereto of two attorneys at law, in accordance with paragraph 737, Code 1892, assuming the section to have application, and took his appeal to the circuit court. The bill of exceptions, so signed, was on motion of the county stricken from the record by the circuit court,” which action of the court was affirmed by appeal. The motion to strike in that case was the equivalent of the demurrer in the case at bar, for by it the court was requested" to strike the bill of exceptions from the record, without reference to whether it correctly set forth the matters which transpired before the board of supervisors or not. In the case at bar, when the city clerk certifies to the court below the so-called bill of exceptions in obedience to the command of the writ of certiorari, the case will then, for all practical purposes, be on all fours with the Roach Case; and it will be the duty of that court, unless the Roach Case should be overruled, to strike the so-called bill of exceptions from the record when requested by motion so to do.
I do not think either of the cases cited by my Associates are here in point. In McGee v. Beall, 63 Miss. 457, the bill of exceptions was tendered during the term, but was not signed until some days thereafter,' and all the court held, or was called upon to decide, in this connection, was whether the president of the board could sign the bill of exceptions after the expiration of the term at which the judgment complained of was rendered. Robinson v. Mhoon, 68 Miss. 713, 9 So. 887, dealt with the improper refusal of a justice of the peace to approve a timely and solvent appeal bond, a very different question from the one here presented.
*879Bills of exceptions are purely creatures of the statute, and can he settled and become a-part of the record only in the manner prescribed by the statute, and the manner prescribed by section 80 of the Code, under which this appeal is sought, is by being “signed by the person acting as president of the board or of the municipal authorities.” Since the legislature has not conferred upon the circuit courts power to settle bills of exception to the action of boards of supervisors and municipal authorities, it necessarily follows that such courts have no right so to do. A bill of exceptions, in the very nature of things, should lie settled by some one who heard testimony embodied therein. I do not think that, because appellant may have had the right to compel the mayor to act upon his bill of exceptions by mandamus, it necessarily results that the circuit court has the right to settle the bill of exceptions itself. If it rightfully possesses such power, this court should have ordered its exercise in the Roach Case, supra, instead of striking the bill of exceptions from the record and reminding the appellant that he could have obtained the president’s signature thereto by mandamus; for in that case it was alleged, and not denied, that the bill of exceptions tendered was correct.
I express no opinion on the other matters here involved.