Lead Opinion
This is a companion case to that of Lincoln Addition Improvement Company v. Lenhart, et al. It involves a petition to disconnect the south half (S-J) of section five (5), from the city of Bismarck. The petition was presented to the city commission for action, under chapter 32 of the Laws of 1921, and a hearing was conducted thereon. After the hearing, the commission found that the
It is the settled law in this state that questions relating* to the change of boundaries of cities are legislative questions. Glaspell v. Jamestown, 11 N. D. 86, 88 N. W. 1023. See also 19 R. C. L. p. 732. By chapter 32, Laws 1921, the legislature fixed and specified all the conditions and facts upon which the exclusion of certain territory from a city should depend, and constituted the city council, or commission, the body to ascertain and determine the existence of these facts and conditions. No provision is made for an appeal from the decision of the city council and under well-settled rules of law applicable to other boards empowered to determine facts the decision of the city council (or commission) as to the facts is, in the absence of fraud, final and conclusive upon the courts. See State ex rel. Dorgan v. Fisk, 15 N. D. 219, 107 N. W. 191. See also State ex rel. Little v. Langlie, 5 N. D. 594, 600, 601, 32 L.R.A. 723, 67 N. W. 958; Greenfield School Dist. v. Hanuaford Special School Dist. 20 N. D. 393, 397, 127 N. W. 499.
As already stated, in this case a review is sought by certiorari. Under our law “a writ of certiorari may be granted by the supremo and district courts, when inferior courts, officers, boards or tribunals have exceeded their jurisdiction and there is no appeal, nor, in the judgment of the court, any other plain, speedy and adequate remedy, and also when in the judgment of the court it is deemed necessary to prevent. miscarriage of justice.” Section 8445, Comp. Laws, as amended by chapter 76, Laws 1919. And “the review upon this writ cannot be extended further than to determine whether the inferior court, tribunal, board or officer has regularly pursued the authority uf such court, tribunal, board or officer.” Comp. Laws, 1913, § 8453. In construing similar provisions the supreme court of California has ruled that this latter section, which prescribes the extent of the review, has substan
Corpus Juris (11 C. J. 103) says:
“In most of the western states, the writ (certiorari) lies only when there is a want or excess of jiu-isdietion in the proceeding complained of. . . . This rule that want or excess of jurisdiction is the only
ground prevails in Arizona, California, Colorado, Idaho, Montana, Nevada, Forth ’Dakota, Oklahoma, the Philippines, South Dakota, and Utah.”
In People ex rel. Whitney v. San Francisco Fire Dept., supra, the California court said:
“We have already seen that the writ can be granted only where the jurisdiction of the inferior tribunal has been exceeded, and . it is clear that the courts are confined to the determination of the question of jurisdiction. Beyond this, they have no right or authority to go; and they have nothing whatever to do with the proceedings before the inferior tribunal, except so far as an examination of such proceedings is necessary for the determination of this question. ... It brings up no issue of law or fact not involved in the question of jurisdiction. Under no circumstances can the review he extended to the merits. Upon every question, except the mere question of power, the action of the inferior tribunal is final and conclusive.”
There can be no doubt but that the question whether the territory sought to he detached should or should not he detached was one properly within the jurisdiction of the city commission. And there is no question hut that the city commission afforded the petitioner a full hearing, and that after such hearing they made a determination. The petitioner invoked the jurisdiction of the commission, and attended, and
“With jurisdiction thereby invoked by defendants, they have no standing in this court on an application for certiorari in which they must assert and establish as a prerequisite of their right thereto the absence or want of jurisdiction of the lower court over the same matter. They cannot at the same time in the same action invoke and establish jurisdiction and then deny its legal effect.”
Jurisdiction relates to the power of the tribunal, and not to the rights of the parties. Dahlgren v. Superior Ct. 8 Cal. App. 622, 97 Pac. 681. “The test of the jurisdiction of a court is whether or not it had power to enter upon the inquiry; not whether its conclusion in the course of it is right or wrong.” Lake County v. Platt, 25 C. C. A. 87, 49 U. S. App. 216, 79 Fed. 567. “Excess of jurisdiction is to be distinguished from errors of law or of fact committed by the inferior tribunal within the limits of its jurisdiction. Such an error does not constitute an excess of jurisdiction. If a court acts in the exercise of its lawful jurisdiction, and not in excess of such jurisdiction, the mere fact that its conclusion is wrong does not make its action an excess of jurisdiction.” 4 Cal. Jur. pp. 1036, 1037.
The sole contention of the petitioner in this case is that the order of the city council is contrary to the evidence. It seems clear that under a statute like ours the court may not consider the sufficiency of the evidence or review the findings made by the inferior tribunal except for the sole purpose of determining whether such tribunal has exceeded its jurisdiction. See Comp. Laws, 1913, §§ 8445-8453; State ex rel. Mayo v. Thursby-Butte Special School Dist. 45 N. D. 555, 178 N. W. 787. See also 11 C. J. pp. 202, 203. In other words, “’the reviewing court has nothing to do with the proceedings before the inferior tribunal, except so far as an examination of such proceedings is necessary for the determination of the question of its jurisdiction. If such tribunal has regularly pursued its authority, the inquiry stops. Errors of law committed by the inferior court in the exercise of its authority cannot be considered; and in such case, no matter how erroneous the decision may be, even on the face of the record, the
For these reasons, we are of the opinion that the order appealed .from must be affirmed. It is so ordered.
Dissenting Opinion
Statement.
(dissenting). Plaintiff seeks, through certiorari, to exclude certain lands from the city of Bismarck. The facts are: — Plaintiff petitioned the city commission of Bismarck to exclude from the city the S.-¿-, sec. 5, twp. 138, rge. 80. In the petition and affidavit, he avers that such land is wholly unplatted; that no municipal sewers, water mains, pavements, sidewalks or other city improvements have been constructed upon the same; that such lands are and always have been used exclusively for agricultural purpose's; that there are no legal voters residing upon the lands; that he has been the owner thereof in fee for more than three years. In May, 1922, the city commission had a hearing upon the petition. Evidence in the form of affidavits was received. The city engineer, in an affidavit, stated that the western boundary of the land sought to be excluded lay m the Missouri river and that the western boundary of the city of Bismarck ran to the center of the main'channel of the Missouri river. Proof also was made of the present bonded and improvement indebtedness of the city. The facts, alleged on stated, in plaintiff’s petition and affidavit are not controverted. A map, prepared by the city engineer and showing the city limits, was introduced. The city commission found that the lands sought to be excluded were bounded' fully on three .sides and partially on the fourth side by lands lying wholly within the city limits. That there is a present bonded and improvement indebtedness of the city amounting to $201,500. That the petitioner had not paid nor offered to pay his just share of such bonded indebtedness for which the lands sought to be excluded stood as partial security; that the exclusion of such land will leave the southern boundary of the •city in an unnatural and inconvenient form and manner. The petition was denied. In June, 1922, plaintiff initiated in district court pro
Opinion.
The material portion of chap. 32, Laws 1921, applicable, provides that when lands described in a petition bordering upon and within the limits of any incorporated city are wholly unplatted and no municipal sewers, water mains, pavements, sidewalks or other city improvements have been made or constructed therein, and this is made to appear upon the hearing of the petition by the city commission, it shall be the duty of the commission to disconnect and exclude such territory from the city.
A rough drawing, traced from the map offered by the city is attached:
It shows a portion of the city, the lands sought to be excluded, and the relation of the ^Missouri river and the present city limits to such land.
The order should be reversed and the cause remanded for further proceedings.
Rehearing
On petition for rehearing.
In this case a rehearing was ordered. Interim the filing of the former opinion and the reargument, there was a change in the membership of the court, Justices Grace and Kobinson having retired from office on January 1, 1923, and being succeeded by Justices Johnson and Nuessle. AUr. Justice Nuessle being disqualified, Judge Burr, one of the judges of the Second judicial district was called to sit as a member of the court.
After reargunient and reconsideration of the questions involved, we are entirely satisfied that the former opinion should he adhered to.
The statute- relating to the exclusion of territory from a city reads:
“On petition, in writing, signed by not less than three fourths of the legal voters and by property owners of not less than three fourths in value of the property in any territory, within any incorporated city, town or village, and being qpon the border and within the limits thereof, the city council of the city, or the board of trustees of the town or village, as the case may he, may disconnect and exclude such territory from such city, town or village; provided, that the provisions of
“Provided, further, that when the property or lands described in such petition bordering upon and within the limits of any such incorporated city, town or village are wholly unplatted, and no municipal sewers, watermains, pavements, sidewalks or other city, town or village improvements have been made or constructed therein, except as hereinafter provided, and this is made to appear upon the hearing upon such petition by the city cóuncil, commission or board of trustees of the town or village, as the case may be, it shall be the duty of the city council, commission or board of trustees to disconnect and exclude such territory from the city, town of village.
“And, provided further, that where a sewer outlet extends upon or over said implatted lands, it shall be the duty of the city council, commission or board of trustees to disconnect and exclude such territory from such city, town or village.” Laws 1921, chap. 32.
It will be noted that a proceeding for the exclusion of territory must be initiated by petition presented to the city council or commission. That body and that body alone is vested with authority to receive and act upon such petition. In other words, the city council or commission, is vested with power-to hear evidence and draw conclusions therefrom. In making its determination the council, or commission, exercises powers jixdicial in their nature (Glaspell v. Jamestown, 11 N. D. 86, 88, 88 N. W. 1023; Mogaard v. Garrison, 47 N. D. 468, 182 N. W. 760), and it cannot be compelled by mandamus to decide the application in any particular Avay. Mogaard v. Garrison, supra.
^lanifestly a city commission has power to deny as well as to grant a petition for the exclusion of territory. The power to entertain and hear a petition necessarily implies the poAvcr to deny it. It is true, the statute says that when certain facts exist the territory shall be excluded, but it vests the city commission, and it alone, Avith atithority to ascertain whether the facts exist. In a sense there- is a duty incumbent upon all boards and tribunals to decide a controversy only one way In all cases Avhere the evidence is such that reasonable men can draw only one conclusion therefrom. That duty rests not- only upon boards, but upon courts. Thus if the evidence in a case is such that
This is not a case where the city commission has proceeded without having before it a petition, or has acted upon a petition without affording the parties interested an opportunity to be hoard. Nor is it a ease where having been petitioned to inquire into and determine one matter, it has conducted an inquiry outside thereof and determined some question not within the inquiry it was asked to conduct. In this case the appellant appeared by counsel and was permitted to make whatever showing he desired to make. It is conceded that a full hearing was afforded. After such hearing the commission made a determination of the application on the merits thereof. The jurisdiction of the commission was not questioned. No evidence was adduced having any hearing on the question of jurisdiction. The appellant invoked the powers of the commission and presented a petition setting forth his claims regarding the lands which he asked to have excluded. He asked the commission to enter upon tho inquiry as to whether such lands ought or ought not to he excluded. It acted upon his request. It entered upon the inquiry. It completed the inquiry and arrived at the conclusion that the facts were not such as appellant in his petition had asserted them to he. It found the facts to he such as not to bring tlic land sought to be excluded within the provisions
In the former opinion reference was made to certain California decisions, construing statutes quite similar to §§ 8445-8453, Clomp. Laws, 1913. On re-argument attention was called to the decisions of the Supreme Court of California in McClatchy v. Superior Ct. 119 Cal. 419, 39 L.R.A. 691, 51. Pac. 696; Schwarz v. Superior Ct. 111 Cal. 106, 43 Pac. 580, and Younger v. Superior Ct. 136 Cal. 682, 69 Pac. 485, and it is asserted that the principles announced in these cases are contrary to the views expressed in the former opinion in this case. The contention is not well founded.
In the. NcOlatchy Case the petitioner had been adjudged guilty of contempt. The record showed that he was refused an opportunity to present his defense in the trial court. In other words, he was denied an opportunity to be heard, and the supreme court of California held lhat ho had been denied the due. process guaranteed to him by the Constitution. In other words, the supreme court of California held the situation to he precisely the same as though judgment had been pronounced without notice of hearing or any opportunity of hearing at all. In concluding its opinion the court said:
“And, quoting from Galpin v. Page, 18 Wall. 350, 21 L. ed. 959, it is said : ‘It is a rule as old as the law, and never more to be respected than.now', that no one shall be personally bound until he has had his day in court, by which is meant until he has been duly cited to appear- and has been afforded an opportunity to be heard. Judgment without such citation- and opportunity wants all the attributes of a judicial determination; it is judicial usurpation and oppression, and can never be upheld where justice is justly administered.’
“These considerations make it manifest that petitioner at his trial in the court below was denied that ‘due process of law’ requisite to a valid conviction; arid for that reason the order convicting him of contempt must be annulled.
“It is so ordered.”
“It is contended by respondent that, even if the action of the court was wrong, it was error merely, which cannot be reviewed on certiorari; that the court having jurisdiction of the person and subject matter, the mere method in which it exercised such jurisdiction cannot be inquired into in this proceeding, which looks only to the question of jurisdiction. If the premise were correct, the conclusion icould undoubtedly follow. But with the view that the action involved no more than mere error we cannot coincide. It was error, certainly, but it was more than that. It was a transgression of a fundamental right guaranteed to every citizen charged with an offense, or whose property is sought to be taken, of being heard before he is condemned to suffer injury. Any departure from those recognized and established requirements of law, however close the apparent adherence to mere form in method of procedure, which has the effect to deprive one of a constitutional right, is as much an excess of jurisdiction as where there exists an inceptive lack of power. “The substance and not the shadow determines the validity of the exercise of the power.’ Postal Teleg. Cable Co. v. Adams, 155 U. S. 689, 698, 39 L. ed. 311, 316, 5 Inters. Com. Rep. 1, 15 Sup. Ct. Rep. 260.
“While the writ of certiorari is not a writ of error, ‘it is nevertheless,’ as suggested in Schwarz v. Superior Ct. 111 Cal. 112, 13 Pac. 580, ‘a means by which the power of the court in the premises can be inquired into; and for this purpose the review extends not only to the whole of the record of the court below, but even to the evidence itself, when necessary to determine the jurisdictional fact/ ”
In Schwarz v. Superior Ct. the petitioner was adjudged guilty of contempt, the charge being that he had violated a certain in junctional order. The order in question contained certain provisions mandatory in character and other provisions prohibitory in character. An appeal had been taken to the supreme court and all the mandatory provisions were “stayed and suspended” pending the appeal, while the prohibitory provisions remained in force. 111 Cal. 106, 43 Pac. 581. The judgment of contempt was general in. terms. That is, the judgment did not show whether the petitioner had been found. guilty of and sentenced for having violated the mandatory or the prohibitory pro
“The objection that we are not at liberty to go beyond the recitals ■or findings in the judgment itself, in reviewing the action of the court below, is not well taken. While the writ of review is not a writ of error, and is not a means by which, as upon appeal, the mere manner of conducting the proceedings, the rulings of the court upon questions ■of evidence, and other matters within the jurisdiction, involving the merits, however erroneous they may be, can be reviewed, it is, nevertheless, a means by which the power of the court in the premises can he inquired into; and for this purpose the review extends, not only to the whole of the record of the court below, but even to the evidence itself, where necessary to determine the jurisdictional fact/’
In Younger v. Superior Ct. “a complaint in partition made the judge of the superior court a party defendant, and alleged that he claimed to have some interest in the land, but that he had no interest therein. After service of summons on the judge, without answering or appearing in the cause, he, of his own motion, and without notice to any partyj caused an order to be made and entered striking the complaint from the files, reciting that the allegations therein as to him were false, deceitful and abusive of the process of the court, and made for the sole purpose of disqualifying him in the trial of the cause.” 136 Cal. 682, 69 Pac. 485. The order was nonappealable, and there was no other plain, speedy or adequate remedy. 186 Cal. 682, 69 Pac. 487.
These California decisions need no further discussion. Clearly they jire not authority for the proposition that the findings of the city commission may be set aside on the ground that they are without support in the evidence. On the contrary, these cases recognize that on
Certain language used by the supreme court of California in Roberts v. Police Ct. 185 Cal. 65, 195 Pac. 1053, seems quite applicable here. In that case the petitioner was convicted in the police court of the city and county of San Francisco of a public offense triable in that court. He appealed from the judgment of the police court to the superior court of said city and county, which under the laws of California was authorized to entertain and determine such an appeal upon a statement of-the case settled by the police judge. 185 Cal. 67, 195 Pac.
“Jurisdiction of the superior court to entertain and determine the appeal is not questioned. That jurisdiction was invoked by petitioner himself, who, within the time and in the manner required by law, took Ids appeal to such court from the judgment of the police court, and the statute gives to the court jurisdiction to entertain such an appeal when duly taken. The appeal was heard upon a statement of the case as required by law. The statute gives to such court the power, upon such appeal, to reverse the judgment of the police court and to grant a new trial, or to affirm the judgment of the police court. Tt must determine the appeal, reversing or affirming the judgment of the. police court as it deems one or the other course proper in view of the matters shown by the statement of the case. Whichever it does it is acting in the exercise of its lawful jurisdiction, and not in excess of such jurisdiction. It has the same power to affirm in any case that it has to reverse, and the mere fact that its conclusion is wrong does not make its action an excess of its jurisdiction. In such case we. have simply error in the exercise of jurisdiction. All that petitioner’s contention amounts to in this regard is that the superior court should .have reversed the judgment of the police court, and that it erred in affirming it. The substantial contention is that the statement of tin-case showed that the evidence on the trial in the police court was not sufficient to establish the guilt of the petitioner of the offense charged, If that be true, the superior court erred in affirming the judgment, but mere errors in the exercise of jurisdiction are not reviewabh: on certiorari. It seems superfluous to cite authorities in support of these well-settled propositions, but if authority be desired, it is to be found in the opinion of this court in Re Hughes, 159 Cal. 360, 113 Pac. 684. No ground appears, therefore, upon which the order of the superior court affirming the judgment of the police court may be here assailed.
“It may properly be noted that there is in fact no force in the claim of petitioner that the judgment of the police court was in excess of its jurisdiction. That claim is based on the same contention, insufficiency
Attention has been called to the decisions of this court in Murphy v.
The Constitution vests in the supreme court: (1) Appellate jurisdiction to decide finally all ordinary litigation (Atty. Gen. v. Chicago & N. W. R. Co. 35 Wis. 425, 518; State ex rel. Lemke v. District Ct. 49 N. D. 27, 186 N. W. 381, 386); (2) superintending jurisdiction over all other courts to control the- course of ordinary litigation in them (Atty. Gen. v. Chicago & N. W. R. Co. and State ex rel. Lemke v. District Ct. supra) “where those courts are proceeding Avithin their jurisdiction, hut by mistake of law, or wilful disregard of it, are doing a gross injustice and there is no appeal or the remedy by appeal is inadequate” (State ex rel. Whiteside v. First Judicial Dist. Ct. 24 Mont. 539, 562, 63 Pac. 395); and (3) original jurisdiction of certain proceedings at law and in equity, — reserved for the use of the state itself Avhen it appears to be necessary to vindicate, or protect its prerogatives or franchises, or the liberties of its people (State ex rel. Linde v. Taylor, 33 N. D. 76, 84, 85, L.R.A.1918B, 156, 156 N. W. 561, Ann. Cas. 1938A, 583; State ex rel. Steel v. Fabrick, 17 N. D. 532, 536, 117 N. W. 860).
The constitutional grant of superintending jurisdiction reads:
“The supreme court . . . shall haA^e a general superintending control over all inferior courts under such regulations and limitations as may be prescribed by lav?.” N. D. Const. § 86.
In carrying out the constitutional direction to “prescribe by law” regulations and limitations for the exercise of the superintending jurisdiction the legislature enacted a laAV providing: — “The supreme court ... in its superintending conIrol over inferior courts may issue such original and remedial Avrifs as arc necessary to the proper exercise of such jurisdiction.” Comp. Laws, 1913, § 7339. This statute Avas enacted in 1891 (LaAvs 1891, chap. 118) and is the only legislative enactment purporting to regulate the. issuance of Avrits by
At common law, the writ of certiorari was used for two purposes: First, as an appellate proceeding for the re-examination of some action of an inferior tribunal; Second, as an auxiliary process to enable the court to obtain further information in respect to some matter already before it for adjudication. See 11 C. J. 89; 4 C. J. 500 ; 29 Cyc. 196. It is apparent that the, certiorari may be used as an auxiliary process in aid of all three grants of jurisdiction vested in this court. It may be used in aid of the original jurisdiction to compel records to be certified here that become pertinent in a proceeding pending before this court. In the exercise of the superintending jurisdiction, certiorari may issue as a preliminary writ to compel the records of the inferior court to bo certified up to this court, so that this court may act intelligently in the matter and determine, whether some action has been taken justifying or requiring the exercise by this court of its superintending control over such inferior court, and, what the character of the writ, if any, to be issued by this court, should be. Such writ may also bo issued to cause a record to be corrected or defects therein to be supplied in any appeal or proceeding pending before the court. See 4 C. J. 500. It is, we think, obvious that § 8445, Comp. Laws, 1913, was intended to proscribe the functions of certiorari as a writ of review, that is, where it was sought to be utilized for the purpose of re-examining the action of some inferior tribunal, board or officer; and that that section was not intended to apply in cases where
The distinction between certiorari as provided by § 8445, Comp. Laws, 1913, and certiorari when issued, under § 7339, Comp. Laws, 1913, in the exercise of the superintending jurisdiction has been repeatedly recognized by this court. Thus it will be noted that under the express terms of § 8445, a writ of certiorari as therein provided will issue only in cases where “inferior courts, officers, boards or tribunals have exceeded their jurisdiction and there is no appeal, nor, in the judgment of the court any other plain, speedy and adequate remedy.” This court has repeatedly ruled that certiorari will not lie under § 8445, Comp. Laws, 1913, in any case where there is a remedy by appeal. See, Lewis v. Gallup, 5 N. D. 384, 67 N. W. 137; St. Paul M. & M. R. Co. v. Blakemore, 17 N. D. 67, 114 N. W. 730; Schafer v. District Ct. 21 N. D. 476, 131 N. W. 240; State ex rel. Brunette v. Pollock, 35 N. D. 430, 160 N. W. 511. In construing § 8445, supra, in St. Paul, M. & M. R. Co. v. Blakemore, supra, this court said: “It is apparent that the remedy by certiorari is not authorized in any case where there is a remedy by appeal. This statutory provision is so plain that its meaning is not open to question.” 17 N. D. 73. This rule, however, does not apply in cases where certiorari is invoked in aid of the superintending jurisdiction. In such cases the writ is not necessarily barred because the action sought to be reviewed or controlled may be reviewed on appeal.
Where certiorari is invoked in aid of the superintending jurisdiction, if the exigencies of the case require, the writ may issue and appropriate action taken even though the action which it is sought to have corrected or annulled is in fact appealable. State ex rel. Fourth Nat. Bank v. Johnson, 103 Wis. 591, 51 L.R.A. 33, 79 N. W. 1081; State ex rel. Lemke v. District Ct. 49 N. D. 27, 186 N. W. 381, 398; State ex rel. Red River Brick Corp. v. District Ct. 24 N. D. 32, 33, 138 N. W. 990.
When this court is asked to exercise its superintending jurisdiction,
In State ex rel. Red River Brick Corp. v. District Ct. supra, the court said:
"When a proper ease arises for the exercise of this power, the writ necessary to fit the ease may take the nature of a command or of a prohibition, or, to enable the court to determine its character, it may he found necessary to issue a preliminary writ requiring records to be certified up, and this may be dono. AVc are satisfied that the authorities to which reference has been made are applicable here, and that their determination of the purpose of the Constitution framers in granting this superintending control is correct. It has been so intimated in several of the cases decided by this court, to which reference has been made. AVhether or not the remedy hv appeal is adequate or speedy, must be determined by the exercise of the sound discretion of this court, applied to the facts in each given case.”
In the eases where this court has exercised its superintending jurisdiction in reviewing orders in criminal cases, the writ directing the records to be certified up to this court was in fact a preliminary writ issued for the purpose of supplying this court with necessary information, so that it could act intelligently in the matter and determine' whether some action had been taken by the lower court, justifying or requiring the exercise by this court of its superintending control and further determine what the character of the writ, if any, to be issued by this court should be.
Reference has also been made to the decisions of this court in Schwahn v. District Ct. 36 N. D. 6, 161 N. W. 566, and State ex rel.
The first case involved, an order made by the district court relating to certain moneys which had been deposited as bail. No action or proceeding of any kind was pending relating to the ownership of the money. No question was raised in this court as to the propriety of the remedy; nor was there, any consideration as to whether the appellate or the superintending jurisdiction of this court was invoked. However, in its opinion in the. case, this court stated that the ease fell within the rule announced in State ex rel. Enderlin State Bank v. Rose, 4 N. D. 319, 28 L.R.A. 593, 58 N. W. 514, and was controlled by that case. And in the case cited the writ of certiorari was issued by this court “under the power of superintending control over inferior tribunals, vested in this court by the Constitution.” 4 N. D. 337.
In State ex rel. Wehe v. Frazier, there was a denial of the constitutional right of due process. In that case a public officer, who under the statute was entitled to notice and hearing, was removed from office by the governor without being afforded a bearing. In other words, the governor made an order which he bad no power to make, for the statute granting the power to remove imposed as an essential jurisdictional prerequisite notice of bearing and opportunity to be heard to the officer sought to he removed. The question there presented was one going directly to the jurisdiction of the governor to make a determination of the. removal proceeding. No question was involved as to whether the findings of the governor wore supported by the evidence. On the contrary this court expressly recognized that that question could not he reviewed on certiorari. The court said:
“The writ will lie only if the Governor has exceeded his jurisdiction. It follows that it will not lie to review the sufficiency or the insufficiency of the evidence, or thq merely erroneous orders of the Governor, if the Governor acted within his jurisdiction.”
It is also contended that the decision in this case is inconsistent with Brissman v. Thistlethwaite, 49 N. D. 417, 192 N. W. 85. The contention is without merit. That case involved a question within the genera] jurisdiction of the district court. Upon an application to that court for a writ of certiorari to a justice of the peace, the parties appeared in person. The question o.f the propriety of the remedy was
It is further contended that the situation presented upon the record here is practically identical with that presented in Mogaard v. Robinson, 48 N. D. 859, 187 N. W. 142, and that oil tbe authority of that case the appellant here should prevail. The case cited involved an application for the exclusion of certain territory from the city of Garrison. The case was decided by a divided court. The dissenting member was of the opinion that upon the record there presented, no want or excess of jurisdiction appeared; that the matter having been duly
“We do not understand that any question of procedure is involved upon this appeal, for upon oral argument respondents disclaimed any contention as to the remedy and in their brief it is stated:
"It is plain that but one point is involved: Should the city council hare, excluded this trad upon Ike showing made-. The were willing that this decision should be reviewed by Judge Nuessle, and we now submit lo the judgment of the supreme court the same question." (Italics are ours.)
“It thus appears that the respondents are desirous of terminating the controversy through a construction of the controlling legislation applied to undisputed facts. In this state of the. record we must regard the case as turning upon the meaning of the, words employed in the statute, ‘where a sewer outlet extends upon or over said unplatted lands/ and upon the facts adduced with reference to the character of that portion of the sewer constructed upon the petitioner’s land. Counsel for the appellant contend that this language is descriptive of a sewer of any length which is used only as an outlet for the system. On the other hand, counsel for the respondent insist that it is descriptive only of that part of a sewer known as the mouth or end of the sewer, and, possibly, land lying some distance beyond the point where the contents are discharged.” (48 N. D. 863, 864).
This language is self-explanatory. Whatever differences of opinion there may be as to the actual effect of the holding in Mogaard v. Kobinson, supra, as applied to the facts in that particular case, the language (pioted indicates that the court acted on the theory that the city council and the petitioner, in effect, had agreed to submit to the district court for determination the question of law as to the meaning of the term “sewer outlet” as contained in chapter 82, Laws 1921; and that on the appeal to this court they assumed the same attitude. In the instant case, however, a much different situation exists. In his brief on this appeal, appellant says:
(a) Is certiorari tbe proper proceeding?
(b) Are tbe determinations of fact and law by the board of city commissioners subject to review? If so, to what extent?
Tbe questions which appellant thus states are tbe first two presented on this appeal were fully discussed by counsel for the respective parties on the original oral argument, and.were fully considered and 'decided in the former decision in this case. The questions were again fully discussed on the reargument. These questions have received our careful consideration and are determinative of this appeal. They were correctly decided in the former opinion, and that opinion will stand.
Dissenting Opinion
(further dissenting after rehearing). Now after a rehearing and long consideration, for the reargument was had on January 16th, 1926, the majority opinion, labelled a per curiam opinion, asserts its adherence to the majority opinion of the court, formerly rendered. In this per curiam opinion, now rendered after rehearing there is discussed alone a procedural question, namely, the reason why certiorari is not the proper or appropriate remedy. At the beginning, this majority opinion states that it has reconsidered the questions involved. Of course, this statement is not quite correct. The majority opinions never have considered the real questions involved. They have refused so to do although the trial court had no hesitancy nor compunctions in so doing. The proceedings had in the trial court must be first considered.
This is an appeal which seeks to review an order of the, district court in certiorari proceedings. The parties stipulated that such order to show cause should be taken and considered for all purposes as a writ of certiorari. The Commission did not question, by motion to quash or otherwise, the jurisdiction of the district court or the propriety of the remedy. The Commission interposed an answer to the petition. In this answer no questions were raised concerning the propriety of the remedy. Specifically, the Commission alleged that the land involved lay wholly within the limits of the city and was surrounded on three sides by land lying wholly -within the limits of the city. After hearing,
The proceeding in the instant case is practically the same as that maintained in Mogaard v. Robinson, 48 N. D. 859, 187 N. W. 142. In that case it appears that a petition was presented to the city council of Garrison to exclude certain territory. A hearing was had and the petition denied. The trial court issued an order to show cause why a writ of certiorari should not issue. The city moved to quash the order. The trial court, after denial of the motion to quash and hearing on the merits, dismissed the order upon the ground that the tract of land involved did not come within the provisions of chap. 32, Laws 1921. An appeal was taken to this court from such order of the trial court. This court reversed the order and remanded the case with directions to enter the appropriate judgment. In that action the trial court determined the subject-matter upon the merits. As the opinion in that case indicates, the parties submitted the subject matter to this court upon the merits.
This case can be distinguished from the case at bar only in the following particular, viz.: in the former case, objection was made to the propriety of the remedy in the trial court; in the latter case such objection was for the first, time raised in this court. It may further be noted that the majority opinion in the instant case is, in substance, practically word for word, a copy of the dissenting opinion in Mogaard v. Robinson, supra. Thus, practically speaking, does the dissenting opinion in Mogaard v. Robinson become the majority opinion in this case. The inconsistency of the court’s position is apparent. For the first time in this court, after the parties have submitted (he real questions involved in a certiorari proceeding for the decision,of the trial court, one of them, to uphold that decision, presents the objection now for the first time that certiorari was not the appropriate remedy. To illustrate the position that the majority opinion now takes, a consideration of the recent cases of Brissman v. Thistlethwaite, 49 N. D. 417, 192 N. W. 90 may be had. The two
“Appellant invokes the rale that certiorari lies only to review ads in excess of jurisdiction. The rule was recognized, and the statutory provisions announcing it were set forth, in the former opinion, but for reasons therein stated the rale was held not applicable in this case. In other words, we held that under the facts disclosed or inferable from the record in this case, we are not concerned loiih the propriety of the, remedy. As pointed out, the district court is one of general jurisdiction. The ultimate question which gave rise to the litigation was one within the general jurisdiction of that court. And for reasons stated in the former opinion it must he assumed on this appeal that the objection first interposed by the justice of the peace to the propriety of the remedy was abandoned, — that the justice' of the peace waived the issuance of a writ’ of certiorari and in effect asked, or at least consented, that the district court decide the entire matter in issue at said time and place. This court has repeatedly held that when a case, which involves a question within the general jurisdiction of the district court, is presented to the district court, with either the express or tacit consent of the parties that the question so presented be determined, the, question of the propriety of the lemecly becomes immaterial and cannot be subsequenlly raised.
“Wo have not, as appellant contends, hold that the practice adopted in this oast is the proper mode of determining the sufficiency of a criminal complaint. "We have merely held that where, as here, the matter is presented to the district court, and that court is in effect asked to determine whether there is in fact and in law a criminal action pending before a justice of the peace; and the court determines lhaf question, that a party who has incited suele decision cannot afterwards question the propriety of the remedy utilized in the first instance in bringing this matter before the district court for determination.”
lint, the per curiam opinion seeks to justify the holding in these
Those cases cited, somewhat at length, simply illustrate the inconsistent position now taken by the majority opinion herein. If the principles applied and followed in the cases cited do not here apply, then the application of the principles in such cited cases should be directly overruled, so that the bar may not be misled through the rule of stare decisis. Assuredly, it is evident that the dissenting opinion in Mogaard v. Robinson, supra, becomes now the majority opinion in this case.
The per curiam majority opinion quotes the statute concerning the exclusion of territory from a city and further cites Mogaard v. Garrison, 47 N. D. 468, 182 N. W. 758, to the effect that where a city commission is invested with power to hear evidence and determine the existence or nonexistence of certain facts, it exercises powers judicial in nature. Then follows the deduction that the city commission has the power to deny as well as the power to grant a petition for the exclusion of territory; that in the city commission is vested the authority to ascertain whether the facts exist; that, in a sense, there is a duty incumbent upon all hoards and tribunals to denúde a controversy only one way in all cases where the evidence is such that reasonable men can draw only one conclusion therefrom; that where the evidence in the case is such that reasonable men can draw only one conclusion therefrom, the duty is incumbent to decide the case in favor of the party whom the law says is entitled to prevail but that the decision in such case is not an excess of jurisdiction hut is an error of judgment.
T>m such logic is based the reasoning that a petition was presented; a full hearing accorded and a determination made upon the merits; that pursuant thereto it found the facts to he such as not to bring the land sought to he excluded within the provisions of the statute. In other words, npon this reasoning, the precise position is taken by the per curiam opinion that if a city commission, upon conceded and stipulated facts, concludes that black is white and that two and two make five and not four, then such conclusion is an error of judgment concerning which the courts are powerless to afford a suitor any relief. Con
What is the constitutional poAver of superintending control ? The Constitution provides that the supreme! court shall have a general superintending control over all inferior courts 'under such regulations and limitations as may he prescribed by law. N. D. Const. § 86. The
The majority opinion asserts that certiorari eases under the power of superintending control have no application because it is the power of superintending control. Necessarily, the majority opinion must premise such a distinction in order to harmonize its decision with former decisions of this court. It quotes the statute, § 7339, Comp. Laws 1913, to the effect that the Supreme Oonrt in its superintending con
In the first case of certiorari in this state under the power of superintending control, this court specifically stated that the writ was issued under its power of superintending control. It quoted the language of the statute that the writ may be granted “when there is no writ of error or appeal nor in the judgment of the court any other plain, speedy and adequate remedy.” The court obviated the objection made that there was another remedy available by holding that it was not speedy. It drew no distinction between the use of certiorari in the exercise of appellate jurisdiction and in the power of superintending control. State ex rel. Enderlin State Bank v. Rose, 4 N. D. 319, 332, 337, 26 L.R.A. 593, 58 N. W. 514. In State ex rel. Clyde v. Lauder, 11 N. D. 136, 90 N. W. 564, an original writ of certiorari was issued against a district judge. The court specifically quoted the statute to the effect that a writ of certiorari might be invoked where inferior courts or tribunals have exceeded their jurisdiction. In Schafer v. District Ct. 21 N. D. 476, 131 N. W. 240, an original application was made for a writ of certiorari against a distinct judge. The court quashed the temporary writ upon the ground that, pursuant to the statute, the applicant had
Now in considering the “change of venue” cases, where original writs of certiorari were involved in the exercise of a superintending control and the question of an abuse of discretion was made determinativo concerning the issuance of the writ, it will he noted that in the very first case the question considered was whether the trial court exceeded his discretion, that is, his jurisdiction, thereby recognizing the application of the statute, Murphy v. District Ct. 14 N. D. 542, 105 N. W. 728, 9 Ann. Cas. 170. In the next case, the court said that “from the general tenor of the opinion in that former it. was hold that if the district court had exceeded its jurisdiction or authority and abused its discretion by transferring the trial of a caso to a too remote county, the abuse of discretion or excess of jurisdiction might be reviewed by certiorari. The members of this court who were not tlien members of the court do not wish to be considered as indorsing the doctrine that a writ of certiorari is a proper remedy in such a case. In this case no question is raised as to the propriety of the writ.” Zinn v. District Ct. 17 N. D. 135, 140, 114 N. W. 472. In the next case, State v. Winchester, 19 N. D. 756, 122 N. W. 1111, an original writ of certiorari was again entertained concerning change of venue granted by a trial court and denied because no abuse of discretion was shown. In
Now, the constitution specifically grants to the supreme court the power to issue writs of certiorari. Necessarily, it must issue these writs in the exercise of its original, superintending, or appellate jurisdiction. The question of its use in the exercise of an original jurisdiction proper is not herein concerned. When used for the purpose of exercising superintending control it is subject to the statutory provisions hereinbefore discussed. -Otherwise, it may be used only in the exercise of an appellate jurisdiction. In the cases cited as illustrative of instances of superintending control, the writ of certiorari used was an original writ, not as ancillary to an appeal or writ of error. In fact; the majority opinion is founded upon the conception that the writ of certiorari in this state is statutory, sui generis, and unlike certiorari at the common law. Hence, the discussion that has preceded is to demonstrate that the eases cited involved the exercise of a superintending control through original writs of certiorari which were subject to and dependent upon the statutory prescription. If the statutory definition of certiorari does not circumscribe the use of the writ in the original exercise of an appellate or superintending jurisdiction, then the reasoning of the majority opinion which relies upon the statute alone must fall; for district courts as well as the supreme court may issue writs of certiorari and the district court did issue a writ of certiorari in the case at bar from which the appeal herein has been taken.
Accordingly, we are concerned with the statutory remedy of certiorari and its application. The majority opinion has given a very limited field of operation to the term “excess of jurisdiction.”
In accordance with the statute and pursuant to the constitutional
This court has frequently stated that the writ will only lie where want or excess of jurisdiction appears. Albrecht v. Zimmerly, 23 N. D. 337, 343, 136 N. W. 240; State ex rel. Noggle v. Crawford, 24 N. D. 8, 11, 138 N. W. 2; State ex rel. Wehe v. Frazier, 47 N. D. 314, 182 N. W. 545. Thus, the statute prescribes. Comp. Laws 1913, § 8445; Laws 1919, chap. 76. This statute has existed since territorial days. The Constitution grants to the supreme and district courts original jurisdiction to issue writs of certiorari. N. D. Const. §§ 87, 103.
It has been said that excess of jurisdiction is difficult, oven impossible to define. 11 C. L. 103.
Section 8453, Comp. Laws 1913 provides that in a certiorari proceeding the review can not be extended further than to determine whether the inferior court, tribunal, board, or. officer has regularly pursued its authority. This court has held that our statute concerning certiorari is sui generis; that our statutory certiorari is not only unlike the common law but equally is unlike the law of any other state; that its office is not confined to a review of judicial or quasi-judicial proceedings but extends to every case where, in the language of the statute, inferior courts, tribunals, etc., have exceeded their jurisdiction; that, in view of the express language of the statute, the supreme and 'district courts have power to examine the acts of such tribunals as are exercising administrative, legislative, judicial and other functions, for the sole purpose of ascertaining whether they have proceeded according to law. State ex rel. Johnson v. Clark, 21 N. D. 517, 528, 131 N. W. 715.
In the recent case of State ex rel. Mayo v. Thursby-Butte Special School Dist. 45 N. D. 555, 178 N. W. 788, this court said that the last cited case establishes a broad ground for the; remedy of certiorari but that the court is not disposed in any manner to qualify the holding on this point for it manifestly follows from the language of the statute. It is not necessary to advert to the scope of certiorari at the common law. 40 Am. St. Rep. 29, note. It is sufficient to state that it was and is an extraordinary remedy to supply defects in the administration of justice and to prevent injustice. 11 C. J. 8. In some respects our statutory certiorari is more extensive than that known at the common
Although our statutory certiorari is peculiar, nevertheless, reference may be and has been made to the common law to better comprehend its purposes and scope. See Re Evingson, 2 N. D. 184, 193, 33 Am. St. Rep. 768, 49 N. W. 733.
The majority opinions have referred to, and quoted from, decisions in California by reason of the similarity of the statutory provisions concerning certiorari. In the McClatchy Case, 119 Cal. 413, 39 L.R.A. 691, 51 Pac. 696, from which an extensive quotation is made in the per curiam opinion, the court said, as quoted in the per curiam opinion “any departure from those recognized and established requirements of law, however close the apparent adherence to mere form the method of procedure is, which has the effect to deprive one of a constitutional right, is as much an excess of jurisdiction as where there exists an inceptive lack of power. ‘The substance and not the shadow determines the validity of the exercise of the power! ” Pray, in substance, wherein is the difference between the refusal to hear facts and the refusal to accept facts? In the later case of Younger v. Superior Ct. 136 Cal. 682, 687, 69 Pac. 485, quoted in the per curiam opinion, a certiorari proceeding was involved. The appellate court repeated the language hereinbefore quoted concerning excess of jurisdiction. It annulled the order. The per curiam opinion further quotes Schwarz v. Superior Ct. 111 Cal. 106, 112, 43 Pac. 580, where a certiorari proceeding was again involved. The quotation contained in this per ‘curiam opinion is requoted herein:
“The objection that we are not at liberty to go beyond the recitals or [hidings in the judgment itself, in reviewing the action of the court below, is not well taken. While the writ of review is not a writ of error, and is not a means by which, as upon appeal, the mere manner of conducting the proceedings, the rulings of the court upon questions of evidence, and other matters within the jurisdiction, involving the merits, however erroneous they may be, can be reviewed, it is, nevertheless, a means hv which the power of the court in the premises can he, ‘inquired into; and for this purpose the review extends, not only to the
Pursuant to the reasoning of the majority opinion these cases are only authority in a certiorari proceeding where the mere question of power is concerned. Put isn’t it a question of power upon the record in this case % Must it be held that this question of power can not be investigated where a city commission has ordered a territory to be detached which, upon the conceded facts and in accordance with the statute, may not be detached ? And vice versa, has a city commission power to deny a detachment when, pursuant to the conceded facts, the statute states that it is its mandatory duty so to do?
But, it is asserted in this per curiam opinion that the statute does not require the city commission to preserve the evidence adduced upon the hearing, however, in this case all of the evidence is here. It has been preserved. Another statute requires, in a certiorari •proceeding, that the inferior court or tribunal, certify fully a transcript of the record and proceedings had. Comp. Laws 1913, § 8448.
Again, it is said that the appellant, who was the petitioner before the city commission, presented his application to the commission. He was accorded a hearing and no complaint was made of any act of the commission until it made its decision on the merits. Surely, what else could the petitioner have done ? It was his duty to make such presentation, pursuant to the statute, and it was also the duty of the commission to proceed as the statute prescribes. Again, they say that the petitioner submitted to the jurisdiction of the city commission. Truly, what may he said of this argument when it is seen that the commission in the trial court submitted this matter to the jurisdiction of the trial court without questioning in any manner the procedure.
In a note to 40 Am. St. Rep. 35, it is said: “It is a fair summary' of the decisions to say that in those states in which the evidence may he brought before the superior court upon certiorari that court may examine it, not for the purpose of determining the credibility of witnesses or the weight to be given conflicting testimony, but solely for the purpose' of determining whether, from competent evidence before it, the-decision of the inferior court is sustainable, and, if so, such decision cannot he set aside as against, or not supported by, the evidence, and,
In 11 C. J. 105, it is stated:
“The writ will not lie to review errors or mistakes in matters of discretion, where the court has acted within its discretion and where there has been no disregard by the court of the procedure prescribed by law; but if the record show nonconformity to' legal requirements, the ‘writ will not be refused on this ground. However, it has been held in some jurisdictions that, if the discretion has been abused it can be reviewed on certiorari.”
In the light of these considerations it is proper to consider the action that this court has taken in certain cases.
In Murphy v. District Ct. 14 N. D. 542, 105 N. W. 728, 9 Ann. Cas. 170, certiorari proceedings were had in this court to review an order of th£ district court granting a change of venue in a criminal case. The question presented was whether the presiding judge exceeded his discretion in sending the case to a particular county. The majority of the court considered and found that the trial court did not abuse its discretion. Judge Engerud, in a dissenting opinion, found that the court did abuse its discretion and stated that the proceeding was one which directly challenged the propriety of the order for a change of venue on the ground that the district judge arbitrarily and without any reasonable cause sent the case to Cass county.
In Zinn v. District Ct. 17 N. D. 135, 114 N. W. 472, certiorari proceedings again were initiated in this court concerning an order of the district court granting a change of venue. The sole question presented was whether the district court acted within its discretion in transferring the trial of the action to a certain county. This court found that there was no abuse of discretion. In this case no question was raised concerning the propriety of the writ. The court did not approve of the doctrine that a writ of certiorari was a proper remedy, nevertheless, by reason of no question being raised it did determine that there was no abuse of discretion.
In State v. Winchester, 19 N. D. 756, 122 N. W. 1111, certiorari proceedings were initiated in this court involving an order of the trial •court granting a change of venue. This court held that the granting of such application for a change of venue was a matter within the sound
In Squire v. County Ct. 25 N. D. 468, 141 N. W. 1135, an application for a writ of certiorari, to review the action of a county court in granting a change of venue, was denied because the plaintiff had an adequate remedy by appeal.
In Lowe v. District Ct. 48 N. D. 1, 181 N. W. 92, certiorari proceedings again were had to review an order of the district court granting a change of venue to a certain county. The question of the trial judge’s discretion was again considered. A place of trial designated by the trial court was ordered changed. Neither the majority opinion nor the dissenting opinions questioned the propriety of the remedy.
In State ex rel. Wehe v. Frazier, 47 N. D. 314, 182 N. W. 545, certiorari issued because the governor did not accord to the petitioner, upon review of the record, a right to be heard.
In Schwahn v. District Ct. 36 N. D. 6, 161 N. W. 556, a writ of certiorari was issued to a district judge and clerk for the reason that the trial judge had irregularly and in excess of his jurisdiction ordered money in the possession of a defendant in a criminal action to be turned over to the clerk.
These cases are illustrative of certiorari proceedings where this court has entertained jurisdiction, either originally or upon appeal, and has considered the merits for purposes of ascertaining whether the lower tribunal, board or officer has regularly proceeded accoiding to law.
May it be doubted that in some of these cases, abuse of discretion has been considered a failure to regularly proceed according to law and therefore an excess of jurisdiction? May it be doubted that this court has considered arbitrary action by a tribunal, board or officer, whetheraeting in a judicial, quasi-judicial, legislative or executive capacity, to be a failure to regularly proceed according to law and therefore an excess of jurisdiction?
In the case at bar there was no right of appeal from the decision of the City Commission: It is not suggested that any other remedy is available. Mr. Justice Christianson, in a dissenting opinion in Cofman v. Ousterhous, 40 N. D. 390, 412, 18 A.L.R. 219, 168 N. W. 826, has quoted with approval the following: “It is a general rule of the
Want of jurisdiction must be distinguished from excess of jurisdiction. 11 C. J. 103. This court has pointed out a path of distinction, in certiorari proceedings. It has recognized that the statute in its prescription has connected the phrase “excess of jurisdiction” with a failure to proceed regularly according to law. Comp. Laws 1913, §§ 8445, ■S453. In other words, although there may be no want of jurisdiction in a certiorari proceeding, yet, acts in excess of jurisdiction not consonant with law may appear in the course thereof.
In the instant case the law requires the city commission, upon a certain petition and upon certain facts in support thereof at a hearing, to detach territory of a certain character. No discretion is granted to the commission when the requisite facts are presented. A mandatory duty is imposed upon the commission to detach the territory, not pursuant to their findings but pursuant to the requisite facts. The ends, neither of justice nor of consistency, are promoted by the holding in the majority opinions. These opinions base their holding entirely upon a procedural question' first raised in this court, manifestly, contrary to the holdings in the Brissman Cases and in Mogaard v. Garrison and contrary to usual rules of practise. The writ of certiorari is given a refined and technical application. No attention is paid to the amendment of § 8445, Comp. Laws 1913, enacted in 1919, which provides in addition that a writ of certiorari may bo granted when, in the judgment of the court, it is deemed necessary to prevent a miscarriage of justice. Accordingly, upon the facts in this case, I am of the opinion that it is the duty of this court to investigate the facts and to decide the questions involved upon the merits the same as the trial court did.