improvement, shall be levied or collected before the making of the improvement." While it is true that the complainant was not seeking, and in the course of things would not have, contract relations with a special assessment district and would have them with the defendant village (Corliss v. Village of Highland Park, supra), it is also true that the defendant village proposed, as its records showed, to collect the greater part of the cost of the paving by means of a special assessment. The estimated cost of the improvement was considerably less than the complainant's bid. The assessment ordered July 6, 1909, was based upon an estimate of a total cost of $106,738.44, of which more than $81,000 was ordered to be raised by a special assessment upon abutting property. The remainder was ordered to be paid from the general highway fund. Complainant's bid was $115,669.49. It was estimated that the cost of engineering and inspection would be $3,470.08. The total prospective cost was therefore $119,139.57. Of the amount which had been ordered assessed upon abutting property, the assessors reported that they had actually assessed $80,083.75 and could not lawfully assess more because of certain statute limitations. It seems to now be admitted that as to some lots which were assessed the lawful limit of assessment was exceeded. The council on September 8th ordered a supplemental special assessment to provide for a deficiency of $8,759.66 and ordered $2,735.96 of the same deficiency paid out of the general highway fund, as well as $1,184.64 which the assessors had reported they were unable to spread on the first special assessment roll.

It appears, further, that the combined general and highway funds of the village, assuming that they contained all that had been appropriated for them, would be overdrawn more than $17,000, if charged with the amounts necessaryto do the paving outside of that raised by special assessments. To these two funds and the special assessment the council was obliged to look for means to defray the expense of the proposed improvement. There was no power

to add to the amount in the funds during the current year. The special assessment was levied under the powers conferred by Act No. 707, Local Acts 1907. The validity of this act is questioned by the defendant.

We have referred to these matters, not for the purpose of determining the validity of the special assessments, but for the purpose of showing what every one interested in the matter must have understood, that the council, as it was bound to do, was trying to provide the means to defray the cost of the proposed improvement in advance of making the improvement. It was a single proceeding and the receiving of bids and the acceptance of one of them was a necessary incident thereto. With this statement of facts, the basis of the communication made to the council by the president appears, as does the reason for the action of the council in rescinding the various resolutions theretofore adopted. The precise limit of the powers of the council need not be determined. Whether the contract, if it had been entered into, could have been enforced, is unimportant. It is apparent that the council did not propose to enter into a contract for paving until it was satisfied that provision had been made for discharging the contract obligation. Becoming satisfied that it had not made the necessary provision, it refused to enter into a contract, the form of which it had approved, but which it had not, finally, bound the village to perform. We do not believe that either the complainant or the common council supposed that, upon the acceptance of complainant's bid, on August 30, 1909, contract relations were established. The evidence supports the affirmative conclusion that neither party supposed that contract relations would be established until the formal contract was executed.

Finding no contract, we find no reason for disturbing the decree upon this appeal, and we therefore affirm it, with costs to appellee.

HOOKER, MOORE, MCALVAY, and BROOKE, JJ., concurred.

HARTZ v. WAYNE CIRCUIT JUDGE.

1. APPEAL AND ERROR-MANDAMUS-REVIEW OF ORDER DISMISSING APPEAL.

A judgment of the circuit court, dismissing an appeal from the judgment and action of a township board, in proceedings to open a highway, under Act No. 195, Pub. Acts 1905, and 2 Comp. Laws, § 4042 et seq., is a final judgment, reviewable on certiorari, and therefore will not be vacated on mandamus. (3 Comp. Laws, § 10497.)

2. MANDAMUS-ADEQUATE REMEDY.

Mandamus does not lie where another adequate remedy exists. 3. APPEAL AND ERROR-STATUTES - SPECIAL PROCEEDINGS - EMINENT DOMAIN.

Proceedings which are purely statutory, and not after the course of the common law, are not reviewable by writ of

error.

4. EMINENT DOMAIN-HIGHWAYS AND STREETS-CONDEMNATION. Proceedings to condemn lands are summary in character, and, while subject to judicial review, are not judicial proceedings.

5. SAME-APPEAL AND ERROR-CERTIORARI.

While a review by writ of error cannot be had in such proceedings, certiorari may issue to review them, not only as to the jurisdiction of the inferior tribunal, but also as to the manner of exercising it and any errors of law committed in so doing.

Mandamus by John C. Hartz against James O. Murfin, one of the circuit judges of Wayne county, to vacate an order dismissing an appeal from proceedings of the township board of Plymouth to establish a highway, to reinstate said appeal, and to proceed to consider it. Submitted November 29, 1910. (Calendar No. 24,273.) Writ denied December 30, 1910.

Keena, Lightner & Oxtoby, for relator.

C. C. Yerkes, for respondent.

STONE, J. In this case petitioner prays for a writ of mandamus to compel the circuit judge to vacate and set aside an order dismissing an appeal from the township board of the township of Plymouth, in a certain highway proceeding, and to reinstate said appeal in the circuit court.

It appears that upon the petition of the requisite number of freeholders of said township, the commissioner of highways took certain action to lay out a highway therein, through lands belonging to the petitioner. The petitioner conceiving himself aggrieved by the determination of such commissioner, perfected an appeal therefrom to the township board of said township. Later said township board took action, and affirmed the determination of said commissioner in said matter. Thereupon petitioner, in pursuance with the statute, duly perfected an appeal from the determination of the township board to the circuit court for the county of Wayne. Due return was made to said appeal. Later said cause came on for trial on said appeal. While the jury was being impaneled, a question was raised by the circuit judge as to the constitutionality of the proceeding, and he finally, by order, dismissed the appeal, upon the ground that the statute providing for an appeal and hearing is unconstitutional, because it contravenes the express language of the Constitution of this State. After the denial of a motion to vacate said order, the petitioner applied to this court for mandamus. An order to show cause was granted, and the respondent has answered.

Counsel for petitioner cites the following cases in support of his claim that he is entitled to invoke this remedy: Michigan Mut. Fire Ins. Co. v. Wayne Circuit Judge, 112 Mich. 272 (70 N. W. 582); Fingleton v. Kent Circuit Judge, 116 Mich. 211 (74 N. W. 473); Defoe v. Bay Circuit Judge, 116 Mich. 567 (74 N. W. 733).

Under the later decisions of this court, we are of opinion that the petitioner has mistaken his remedy, and that he presents a case where he has another adequate remedy, as the order made by the circuit judge amounted to a final

judgment. Dages v. Sanilac Circuit Judge, 122 Mich. 490 (81 N. W. 355); Mardian v. Wayne Circuit Judge, 118 Mich. 353 (76 N. W. 497); Skutt v. Kent Circuit Judge, 136 Mich. 477 (99 N. W. 405); Cattermole v. Ionia Circuit Judge, 136 Mich. 274 (99 N. W. 1); City of Flint v. Genesee Circuit Judge, 146 Mich. 439 (109 N. W. 769); Moran v. Wayne Circuit Judge, 125 Mich. 6 (83 N. W. 1004).

It is a well-settled rule that mandamus will not lie when there is another adequate remedy. What is the adequate remedy in such a proceeding?

It has been often held by this court that in proceedings which are purely statutory, and not after the course of the common law, the writ of error will not lie. Holbrook v. Cook, 5 Mich. 225; Cross v. People, 8 Mich. 113; Conrad v. Button, 28 Mich. 365; Cameron v. Bently, 28 Mich. 520; Smith v. Superintendents of the Poor, 34 Mich. 58.

In Detroit United Railway v. Oakland Circuit Judge, 146 Mich. 540 (109 N. W. 846), this court declined to review on mandamus the order of the circuit judge dismissing a petition for the condemnation of land, and the case was later brought here and disposed of on its merits by writ of certiorari. Detroit United Railway v. Barnes Paper Co., 149 Mich. 675 (113 N. W. 285).

The proceeding in this case is one to condemn lands. Such proceedings are special and summary in character, and, while subject to judicial review and supervision for certain purposes, are not judicial proceedings. Toledo, etc., R. Co. v. Dunlap, 47 Mich. 456 (11 N. W. 271). In that case Justice CAMPBELL said:

"The proceedings to condemn lands, although made under the railroad laws subject to judicial review and supervision for certain purposes, are not in themselves, and never have been regarded as judicial proceedings. Our Constitution allows them to be conducted by highway commissioners in some cases, and by specially appointed commissioners or juries of freeholders. The in