specially concurring.
I agree with the holding of the majority that the writ of certiorari is the appropriate means by which this court should review the ruling of the Laramie municipal court with respect to the constitutionality of § 10.24.090 of the Laramie Municipal Code. I also agree that the ordinance in question does not violate the federal or state constitutions. I take exception, however, to the conclusion by the majority that the framers of the Wyoming Constitution, in providing for the issuance of the writ of certiorari, did not intend to limit the writ to its function at common law. 671 P.2d at 344.
In City of Sheridan v. Cadle, 24 Wyo. 293, 157 P. 892 (1916), one of the earliest cases in which this court considered the propriety of the issuance of the writ of certiorari, we said:
“The writ of certiorari is a common-law writ, and under the power conferred * * by the Constitution * * * it must be held that the court has authority to issue it * * * subject to the conditions and limitations controlling the writ at common law.” (Emphasis added.) 157 P. at 894-895.
A petition for a writ of certiorari was before this court in Call v. Town of Afton, 73 Wyo. 271, 278 P.2d 270 (1954). There we said that this court was charged with “keeping the provisions of the constitution [concerning certiorari] within its proper limits.” 278 P.2d at 273. We noted that Wisconsin has a constitutional provision like ours and quoted from Wardsworth v. Sibley, 38 Wis. 484, 486 (1875), where the Wisconsin Supreme Court said:
“The constitution refers to the writ as it was used and applied in practice when the constitution was adopted, and did not intend to give it a scope or object different from its original and appropriate function.”
The highest courts of other states, when asked to rule on the availability of the writ, have determined that where the parameters of certiorari are not specified in statutory or constitutional provisions, the common-law writ applies. Sutterfield v. District Court in and for County of Arapahoe, 165 Colo. 225, 438 P.2d 236 (1968); Morris v. Apodaca, 66 N.M. 421, 349 P.2d 335 (1960).
I reviewed the scope of the common-law writ of certiorari in my dissenting opinion in Wright v. State, Wyo., 670 P.2d 1090 (1983), and cited authority to the effect that certiorari is available where the lower court has proceeded illegally and no appeal or other means of review is permitted.
“ ‘ * * * [I]t can generally be stated that certiorari will lie in two classes of cases, (1) whenever it is shown that the inferior court or tribunal has exceeded its jurisdiction; (2) whenever it is shown that the inferior court or tribunal has proceeded illegally, and no appeal is allowed or other mode provided for reviewing its proceedings. 10 Am.Jur. 527, Certiorari, § 5.’ ” Quoting from Morris v. Apodaca, supra, 349 P.2d at 336. 670 P.2d at 1111 (dissenting opinion).
The common-law writ of certiorari is described in Works, Courts and their Jurisdiction, 2nd Ed. (1897), at 698, as follows:
“The writ of certiorari is a writ by which the record of a proceeding in a lower court is removed into a higher court for review. It is one of the means by and through which superior courts exercise and enforce their supervisory power and control over courts and tribunals of inferior jurisdiction, and lies where the party aggrieved has no adequate and speedy remedy by the ordinary proceedings at *347law, as, for example, by writ of error or appeal, or by motion in the court before which the action is pending.”
The common-law writ is further identified in Works, supra, as a remedy designed to function in limited situations where review is not available or where the court in the first instance has exceeded its jurisdictional bounds:,
“So the jurisdiction of the courts would be simple enough if the writ were regarded as in the nature of a writ of error, or appeal for the correction of errors of law, where neither of these remedies were allowed; and allowed, also, to test the jurisdiction of the court, and for that purpose only, whether a writ of error or appeal is allowed or not. It is quite evident that the common law writ was never intended to extend further than this. For one of these purposes it is in all essential respects a writ of error, and for the other a jurisdictional writ entirely, and only available where the judgment attacked is void for want of jurisdiction, either of the subject-matter or of the person.” Works, supra, at 700-701, citing Harris v. Barber, 129 U.S. 366, 9 S.Ct. 314, 32 L.Ed. 697 (1889).
Until today this court has not deviated from the concept that certiorari issues “subject to the conditions and limitations controlling the writ at common law.” City of Sheridan v. Cadle, supra, 157 P. at 895. We said in State ex rel. Pearson v. Hansen, Wyo., 409 P.2d 769, 771 (1966):
“Certiorari * * * [is] a discretionary writ issuable only where there is no other adequate remedy. * * * ” Citing City of Sheridan v. Cadle, supra, and Call v. Town of Afton, supra.
The majority say that the writ of certio-rari, as authorized by our constitution, is not restricted to its common-law role. They reason that certiorari cannot be limited to testing jurisdiction since that “has been the traditional function of the writ of prohibition.”
“ * * * We then conclude that in referring to the writ of certiorari in the same phrase as the writ of prohibition the framers of the Constitution of the State of Wyoming must have intended some different function for the two writs and did not intend to limit the writ of certiorari as it had been utilized under the common law.” (Emphasis added.) 671 P.2d at 344.
The fallacy in this argument is that, at common law, both writs were used to test jurisdiction, but a distinction was made as to the objectives of the two writs. The common-law writ of prohibition is preventive in nature (used to prevent an anticipated act in excess of jurisdiction), while cer-tiorari is remedial (used to quash an action taken in excess of jurisdiction). Works, supra, at 628, 704. Thus, the two writs are not duplicative, and it is erroneous to say that the framers of the constitution intended to expand certiorari beyond its common-law function by referring to certiorari in the same phrase as prohibition. Moreover, as we have seen, certiorari can be confined to its common-law role and still permit review of questions of law other than jurisdiction, so long as no other means of review is available.
In the case at bar, the City of Laramie has available no statutory procedure by which to obtain review of an adverse ruling that involves not only a question of law, but is of constitutional magnitude. City of Sheridan v. Cadle, supra. Therefore, the issuance of the writ in this case is consistent with the common-law function of certiorari, as contemplated by Art. 5, § 3 of the Wyoming Constitution. For this reason I concur in the majority holding that this court properly exercised its discretionary authority in granting certiorari.