Argument for Appellant.

the meaning of the Constitution, and that as the bond does does not cover such taking, the section of the statute under consideration is void.

Mr. Justice NILES did not express an opinion.

[No. 2,462.]

THE PEOPLE OF THE STATE OF CALIFORNIA, EX REL. C. VEJAR, v. JACOB METZKER.

MEMBERS OF THE COMMON COUNCIL OF A CITY.-When the charter of a city provides that the Common Council shall "judge of the qualifications, elections, and returns of their own members," the Council possesses the exclusive authority to pass on the subject, and Courts have no jurisdiction to inquire into the qualifications, elections, or returns of members of the Council.

APPEAL from the District Court, Seventeenth Judicial District, Los Angeles County.

The complaint averred that, on the sixteenth day of December, 1869, an election was held in Los Angeles for the election of five members of the Common Council, for the term of two years from the date of their election, and that C. Vejar was one of the five who received the greatest number of legal votes, and was elected; but that, on the sixteenth day of December, 1869, the defendant usurped the office, and had since unlawfully exercised and withheld the same from the relator. The defendant demurred, on the ground that the Court had no jurisdiction, and the Court overruled the demurrer. He then answered, and judgment was rendered for the relator, and he appealed. The other facts are stated in the opinion.

Thorn & Ross, for Appellant, argued that the right to judge of the qualifications, elections, and returns of its own members, was given to the Common Council for public purposes, and that, when exercising the power within the limits of the charter, its action could not be controlled by

Opinion of the Court-Rhodes, J.

the Judiciary, and cited Whitney v. Board of Delegates, 14 Cal. 479; Holland v. City of San Francisco, 7 Cal. 361; and Cooley's Const. Lim. pp. 207-8-9.

Glassel, Chapman & Smith, for Respondent, argued that, if the Act of March, 1850, vested the Council with the power to determine the election, qualifications, and returns of its own members, that section 310 of the Practice Act, afterward passed, gave the District Court power to adjudicate and determine "against any person who usurps, intrudes into, or unlawfully holds or exercises any public office, civil or military, in this State," and that the latter Act must prevail.

By the Court, RHODES, J.:

This is an action in the nature of a quo warranto, brought under section 310 and following, of the Practice Act, to determine the right of the defendant, and of the relator as well, to the office of a member of the Common Council of the city of Los Angeles. The appeal is from the judgment alone; and as the record contains neither a bill of exceptions nor a statement on appeal, the only questions which arise are whether the Court has jurisdiction of the action, and whether the complaint states sufficient facts to sustain the judgment.

The tenth section of the Act of March 11th, 1850, to provide for the incorporation of cities (Statutes of 1850, page 88)—that Act being applicable to that city at the time of the alleged election of the relator-provides that the Common Council "shall judge of the qualifications, elections, and returns of their own members."

The eighth section of Article 4 of the Constitution, relating to the legislative department of the State Government, is as follows: "Each house shall choose its own officers, and judge of the qualifications, elections, and returns of its own members." The words of the Constitution and of the statute being identical, should receive the same construction. It is settled beyond controversy, that those

Points decided.

words of the Constitution confer upon each house the exclusive power to judge of and determine the qualifications, elections and returns of its own members; and it follows that the Common Council of a city to which that section of the Act is applicable, possesses the like exclusive authority to judge of and determine the qualifications, elections, and returns of its own members. The Court, therefore, had no jurisdiction of the action.

Judgment reversed and cause remanded, with directions to dismiss the action.

Mr. Chief Justice WALLACE did not express an opinion.

[No. 3,478.]

T. FLYNN AND B. BURNS v. F. D. COTTLE.

CANCELLATION OF CERTIFICATE SETTLING STATEMENT.-If, after an appeal was taken from a judgment, a statement on appeal was settled and certified as correct by the Judge, he could, under section sixty-eight of the Practice Act, at any time during the term, or within five months thereafter, cancel the certificate, on becoming satisfied that it was erroneous, or was made through inadvertence, and the filing of the transcript on appeal in the Supreme Court did not deprive him of this power. SETTLING OF STATEMENT AFTER AN APPEAL.-When a certificate of the Judge, settling a statement made after appeal from the judgment, is cancelled by the Judge, after the transcript on appeal from the judgment has been filed in the Supreme Court, the respondent is not entitled to have the appeal dismissed, but the appellant is entitled to have the appeal retained until he can procure the statement to be settled and certified.

APPEAL from the District Court of the Twelfth Judicial District, City and County of San Francisco.

The defendant appealed from the judgment. The other facts are stated in the opinion.

B. S. Brooks, for Appellant.

Sharp & Lloyd, and D. H. Whittemore, for Respondents.

Opinion of the Court-Crockett, J.

By the Court, CROCKETT, J.:

The appeal in this case is from the judgment, and was perfected June 18th, 1872. Fifteen days thereafter, the statement on appeal was settled and certified by the Judge, but was not filed in the Clerk's office until August 31st, 1872. After the transcript on appeal had been filed in this Court, to wit, on October 17th, 1872, the District Judge entered an order revoking and canceling his certificate, reciting in the order that it appeared that the statement as settled was erroneous, and that the certificate was inadvertently made.

The respondent brought up a certified copy of the order revoking the certificate, and moves to dismiss the appeal, on the ground that the statement on appeal has not been settled and certified, and that the appeal is therefore premature.

The appellant contends that after the appeal was perfected in due form, and the transcript had been filed in this Court, containing the settled statement, duly certified, it was not in the power of the District Judge to invalidate the appeal by cancelling his certificate to the statement. But the statement itself was settled, and the certificate made after the appeal was perfected; and the fact that the transcript was filed in this Court, did not deprive the District Court of any power which it otherwise had to amend its records. Under section 68 of the Practice Act, we think the Court had the power to cancel the certificate, on becoming satisfied that the statement, as settled, was erroneous, and that the certificate was made through inadvertence; provided the error was corrected, as in this case, either during the term or within five months thereafter. The point seems to have been expressly decided, and we think correctly, in Branger v. Chevalier, 9 Cal. 351. The statement, therefore, remains as yet unsettled, so far as we are advised from the record before us. But it does not follow that the appeal should be dismissed, because the statement has not as yet been settled. Under the Practice Act, an appeal might be taken without a statement on appeal, or in

Points decided.

advance of its settlement; and if it appear, as in this case, that the statement was filed in due time, and was certified by the Judge, but that, after the transcript had been filed in this Court, the Judge had revoked and canceled his certificate, the appeal from the judgment is nevertheless' valid, and the appellant, if he so elects, will be entitled to have the appeal retained, until he shall have an opportunity to procure the statement to be settled and certified.

The motion to dismiss the appeal is denied, the submission of the cause set aside, and the cause will be restored to the calendar.

Neither Mr. Chief Justice WALLACE, nor Mr. Justice NILES, expressed an opinion.

[No. 2,328.1

CALIFORNIA PACIFIC RAILROAD COMPANY v. CENTRAL PACIFIC RAILROAD COMPANY OF CALIFORNIA ET AL.

WHEN CERTIORARI LIES.-When, in a proceeding for the condemnation of land, the District Court makes an order which it has no jurisdiction to make in relation to the use of the property sought to be condemned, and there is no appeal from the order, certiorari is the proper remedy, in order to have the order annulled before the damages it purports to authorize have been sustained.

IDEM.--When a trespass is about to be committed, by authority of an order of Court which is void, the fact that the trespass may be enjoined in equity does not prevent the order from being reviewed on certiorari, for the mere fact that the order is void will not alone authorize an injunction. JURISDICTION OF COURT IN CONDEMNING LAND. In proceedings for the condemnation of property for a railroad, under the Act of 1861 as amended in 1863, the District Court has no jurisdiction to make an order authorizing the petitioner to take possession of and use the land sought to be condemned during the pendency of the proceedings for condemnation, for said Act does not provide any compensation to the owner for such taking, and is, therefore, in so far as it authorizes it, unconstitutional.

CERTIORARI from the Supreme Court to the District Court of the Sixth Judicial District, County of Sacramento.