21 Mont. 469 | Mont. | 1898
Buck applied to the court below for a writ of certiorari to the board of county commissioners of Ravalli county. The affidavit upon which the application was made states that Buck is a resident, taxpayer, and qualified elector of Stevensville, county of Ravalli, and as such is beneficially
Respondent’s brief fails to comply with subdivision 1 of rule 5 of this court (44 Pac. vii.). There is no excuse for its violation and we indulge the hope that counsel will hereafter observe its requirements.
1. The first ground of the motion to quash is that appellant is not a party beneficially interested, within the meaning of Section 1942 of the Code of Civil Procedure, providing that “The application (for the writ) must be made on affidavit by the party beneficially interested. ’ ’ Respondent insists that in an application for a writ of certiorari by a private person his interest must be of a nature which is distinguishable from that of the mass of the community; in other words, that the private person who invokes the writ must show some injury to himself not suffered by his fellows. The rule contended for is always observed in applications for the writ to- enforce a private right, and in such case the applicant must disclose some personal or special interest in the matter sought to be reviewed; but where the relief sought is as to a subject of public concern, or is a matter of public right, the question whether the applicant is under the necessity of showing an interest peculiar to himself has been the occasion of irreconcilable conflict in the decisions of the courts.
After a painstaking and thorough examination of the cases treating of the question, we are- satisfied that the great weight of authority and the better reasoning establish the rule that,
2. In acting upon the petition, did respondent exercise judicial functions in the sense in which those words are used in Section 1941 of the Code of Civil Procedure ? That section provides: “A writ of review may be granted * * when an inferior tribunal, board or officer, exercising judicial functions, has exceeded the jurisdiction of such tribunal, board or officer, and there is no appeal, nor, in the judgment of the court, any plain, speedy and adequate remedy.1 ’
We entertain no doubt that in determining how many electors signed the petition, and whether they were equal in number to a majority of all the votes cast at the election held in 1896, respondent exercised judicial functions, within the meaning of section 1941, supra. It exercised quasi judicial powers involving judgment and discretion. Among the many cases holding to this doctrine, we cite Herrick v. Carpenter, 54 Iowa 340, 6 N. W. 574; Champion v. Board of Commissioners, 5 Dak. 416, 41 N. W. 739; Ellis v. Karl, 7 Neb. 381; State v. Commissioners, 6 Nev. 100; Board of Cammissioners v. Markle, 46 Ind. 96; Miller v. Jones, 80 Ala. 89. Our attention has not been called to, nor has a research disclosed, any decisions to the contrary.
3. The third ground of the motion is that it does not appear from the affidavit that respondent exceeded its jurisdicdiction in acting upon the petition, and the fourth ground is that the affidavit does not state facts sufficient to justify the court in granting relief.
Section 1947 provides: “The review upon this writ cannot be extended further than to determine whether the inferior tribunal, board, or officer has regularly pursued the authority of such tribunal, board, or officer.5 ’
Sections 4157 and 4158, supra, clothe the board of commissioners with authority to receive petitions for the relocation of
The affidavit does not state facts sufficient to show that the respondent has not regularly pursued its authority, and therefore the motion to quash was properly granted on the third and fourth grounds stated therein. It follows that the judgment appealed from must be affirmed, and it is so ordered.
Affirmed.