54 Iowa 567 | Iowa | 1880
Counsel for the appellants state the question to be determined to be that the city has “ no power to vacate or divert Streets and alleys from their use as such, and any act to that end is ultra vires, and interferes with vested rights. This identical question was before this court in Gray v. The Iowa Land Company, 26 Iowa, 387. It was there said by Weight, J.: “ If the city authorities had the power to order the vacation plaintiffs’ case is at an end, for the objection made goes, as we understand, to the want of power, and not to, .the manner of its exercise,” and it was. held that under the j. . / . then existing statutes the power did • exist, and, therefore, a demurrer to the petition was properly sustained. The case of Warren v. The Mayor, 22 Iowa, 351, was referred to and distinguished. The city was laid out in 1848, and was incorporated by special charter in 1855. In 1870 such charter waá abandoned, and the city became duly incorporated under the general incorporation law, which constitutes its present Charter, and it is therein provided cities “ have power to lay dff, widen, straighten, narrow, vacate, extend, establish and light streets, alleys and public grounds.” Code, § 464.
• Prom the action of the city vacating the streets in question no appeal has been provided by statute, therefore none can be taken. In such case the unquestionable weight of authority in this country is, it is said, certiorari lies. 2 Dillon’s Municipal Corporations, § § 476, 740, and authorities cited. It was held by this court in Myers v. Simms, 4 Iowa, 500, that certiorari was the projier remedy to test the legality of the action of the county court establishing a highway.
• We have no doubt certiora/ri is a proper remedy; especially is this so under the provisions of the Code above referred to, and the power given to “ affirm or annul the proceedings in whole or in part, or in its discretion correcting the same and prescribing the manner in which the party or either of them shall further proceed. Code, § 3222. That cities, under Code, § 464, are .vested with a discretion as to the yacation of streets, is without doubt true. This involves the power to determine when such discretion shall be exercised. It has been held this partakes of a judicial character. Parks v. The Mayor et al., 8 Pick., 217; Gay v. Bradstreet, 49 Me., 580. It would seem to follow that it is not the province* of equity to correct the errors of another tribunal vested-with a discretionary power and proceeding under statutory authority.
. In High on Injunctions, § 404, it .is said: “An injunction-will ^not be allowed, to prevent the authorities ‘of a city from exercising their control over the opening or widening of public streets or highways. There must be some reason
"While it is averred in general terms the plaintiffs will suffer irreparable injury, no facts are stated which justify the averment. Nor could there be any such injury, because the remedy by certiorari is full and complete. In addition to what has been stated it is provided when the writ is applied for a stay of proceedings before the inferior tribunal may be granted. Code, § S218.
Eor the reasons above stated, we think the judgment below should be
Affirmed.