178 N.W. 787 | N.D. | 1920
This is an appeal from a judgment entered in the district court of McHenry county in a certiorari proceeding. It was instituted by electors and taxpayers of Maryland school district No. 144 of Ward county for the purpose of obtaining a review of certain proceedings had by the school board of Thursby-Butte special school district No. 37 in McHenry county, by which the latter attempted to attach certain of the territory of the first-mentioned district. The proceedings complained of were originated by the presentation to the defendant district of a petition for annexation, and at a meeting held in June, 1919, the board of the defendant district made an order annexing the lands embraced in the petition. This order is conceded to be void, and no questions concerning it is raised upon this appeal. Hpon the complaint setting up the facts showing the invalidity of the order, a writ of certiorari was issued, commanding the defendants to certify the proceedings, with all things appertaining thereto, to the court sitting in Devils Lake on October 31, 1919.
It seems that some time prior to the petition upon which the defendants acted in June, 1919, there had been some annexation proceedings which affected the territory involved in the later petition, and that these had given rise to some litigation which had terminated favorably to the
However, the defendants attempted in the first return filed to set up these prior proceedings for the apparent purpose of having it determined that the territory represented by the plaintiffs was in fact legally attached to the defendant district without regard to the void order in June, 1919. Upon motion the original return was stricken and an amended return ordered filed. The amended return reincorporated much of the stricken matter relating to the prior proceedings. But the trial court confined itself to the annexation order of June, 1919, and entered a judgment adjudging it to be void, vacating the same, and giving to the plaintiffs their costs and disbursements. The defendants have appealed from this judgment, and contend here, as in the court below, that the prior proceedings should be reviewed for the purpose of establishing that the territory represented by the plaintiffs is, in reality, legally attached to the respondent district, irrespective of the order which is concededly void. The doctrine contended for by the appellants is that when a plaintiff seeks a review, by certiorari, of proceedings of a board of a quasi municipal corporation to correct action based upon an excess of jurisdiction, the defendant has a right to set up and have litigated all prior matters which might affect the general subject-matter, and thus convert the special proceeding of certiorari into an action of quo warranto, testing the legality of the exercise of corporate power. It is our opinion that this cannot be done.
Counsel rely upon the case of State ex rel. Johnson v. Clark, 21 N. D. 517, 131 N. W. 715, for a double purpose. It is claimed it establishes : First, a broad scope for the remedy of certiorari; and, second, that it is directly in point on the facts and the law applicable in the instant case. The case does establish a broad ground for the remedy of certiorari, and we are not disposed to, in any manner, qualify the holding on this point, for the holding manifestly follows from the language of our statute. Comp. Laws 1913, § 8445. But we cannot agree with
But it is contended that the writ should not issue unless some good purpose may be served thereby, and that if the court would enter into a consideration of the prior proceedings it would develop that the territory affected by the void order was in reality already a part of the district. If this be true, the appellants are not injured by the judgment, as it determines nothing with reference to the validity of any prior proceedings. Furthermore, the inquiry necessary to determine whether or not the writ of certiorari serves a good purpose in this case, to be effective, would involve the consideration, possibly, of more than
Morrissey v. Blasky, 22 N. D. 430, 134 N. W. 319, relied upon by the appellant, decides nothing contrary to the views hereinabove expressed. It was there held that after the district court had, on a proper showing, issued its writ of certiorari, it should not have quashed the writ where, upon the hearing had, it appeared that the plaintiff might have pursued some other remedy. This was a matter that might properly have influenced the discretion of the district judge in issuing the writ in the first instance, but it did not preclude a determination of the merits of the case when once the writ had issued. Upon the hearing it appeared that the justice court, in entering the judgment under review, had in fact exceeded its jurisdiction, and this court properly directed the entry of a judgment in the district court in the certiorari proceeding annulling the judgment of the justice court.
It is also argued that the amendment of § 8445, Comp. Laws 1913, as found in chapter 16 of the Session Laws of 1919, so broadens the scope of the writ of certiorari as to include the review sought by the appellant. To the statute which provided for the issuance of the writ when inferior courts, officers, boards, or tribunals have exceeded their jurisdiction and there is no appeal or any other plain, speedy, and adequate remedy, the amendment added the additional provision that the writ should also issue “when, in the judgment of the court, it is deemed necessary to prevent a miscarriage of justice.” Suffice it to say in answer to this contention that the appellants are not applying for a writ of certiorari, and the plaintiffs in the writ have sufficiently stated the grounds for its issuance. It is unnecessary to determine here what a petition should state, in addition to the usual statutory grounds, in order to bring the petitioner within the broadened scope indicated by the amendment.
For the foregoing reasons we are of the opinion that, under the cir