54 Iowa 586 | Iowa | 1880
If there bad been a mere ex parte order granting the writ,
The writ may be granted i£ in all cases where an inferior tribunal, board or officer exercising judicial functions is alleged to have exceeded his proper jurisdiction, or is otherwise acting illegally.” Code, § 3216. We have then the question whether the city council of the defendant city in jjassing the ordinance did so in the exercise of a judicial function. If it did, certiorari is the proper remedy.
Cases are nót wanting where courts have held that the proceediugs of a municipal corporation may be examined upon certiorari. In Dillon on Municipal Corporations, Vol. 2, p. 813, it is said that such is unquestionably the weight of authority. The plaintiff cites the learned author as holding the doctrine for which he contends. But the proceedings of a municipal corporation are not homogeneous. Some, it
Many of the cases relied upon as holding that the proceedings of a municipal corporation may be examined upon certiorari are cases where the regularity of the proceedings of the corporation is drawn in issue in respect to the establishment of a street. Stone v. The City of Boston, 2 Met., 220; Parks v. The City of Boston, 8 Pick., 218; Dwight v. The City Council of Springfield, 4 Gray, 107; Swann v. The City Council of Cumberland, 8 Gill. (Md.), 150. But in Parks v. The City of Boston, above cited, the court said: “We cannot doubt that the power thus conferred is judicial, for before the mayor and aldermen can proceed to lay out. a new street, or to widen an old one, they are required to adjudicate upon the question whether the safety or convenience of the citizens requires such a laying out' or alteration.” See, also, Stubenraugh v. Neyenesch, ante, 567.
The passage of ordinances like the one in question, as may readily be seen, is something essentially different. Such ■ordinances are by-laws. They prescribe a rule of conduct. In their character, and purpose, and necessity for enforcement through the courts and officers of the government, they do not differ in any essential respect from an act of a legislature. The action, therefore, of a city council in passing such an ordinance appears to us to be in its nature legislative. It differs materially from an adjudication. The latter assumes an existing rule, and operates upon specific property or persons by an application of the rule.
The plaintiff does not need the aid of a writ of certiorari to test the validity of the ordinance in question. He is not specifically affected by it. He avers merely that he is a citizen and tax-payer. It will be time enough, we, think, for him to complain when he shall be charged in a court of law with having violated the ordinance. So far as the record shows in this case he may be interested solely in maintaining .the ordinance; that is, his sole interest may be such as he
As the record discloses no actual specific right on the part of the plaintiff which the ordinance contravenes, we ought, perhaps, to say that the plaintiff indicates in his argument that the suit was instituted in behalf of the public. He argues that “ the citizen ” should not be compelled to take the hazard of becoming a criminal in order to test his rights. But it is manifest that the rights spoken of are abstract rights. In our opinion certiorari does not lie, and the writ should have been refused.
Reversed.