.(dissenting in part). I agree with the interpretation which my associates place upon the term “sewer outlet” in chap. 32, Laws 1921. I do not, however, agree with th'em that the order made by the city council should be adjudged invalid.
The plaintiff predicates his alleged rights in this proceeding upon chap. 32, Laws 1921. That statute reads as follows: *866city, town or village; provided, that the provisions of this section shall only apply to lands not laid out into city, town or village lots or blocks.
*865“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 incorproated city, town or village, and being upon 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 be, may disconnect and exclude such territory from such
*866“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, water mains, 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 council, 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 or village.
“And, provided further, that where a sewer outlet extends upon or over said unplatted 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, provided, that this act shall not in any way repeal or otherwise affect the provisions of § 3697 of the Compiled Laws of 1913.”
It will be noted that the first proviso in this section states that the unplatted territory shall not be detached from a city where there are municipal sewers, water mains, pavements or sidewalks constructed thereon. The second proviso says that, “where a sewer outlet extends upon or over such unplatted lands,” it shall be the duty of the city council or commission to exclude the territory. The second proviso was an amendment added by the Legislature in 1921, and the obvious purpose thereof was to distinguish between that portion of a sewer system which is denominated the “sewer outlet” and the • remainder of the system. So as the law now stands it is only in case the “outlet” of a sewer is upon unplatted lands that such lands may be excluded; if any part of the municipal sewer system except the “outlet” had been constructed therein, the lands may not be excluded.
In this case it is sought to review the action of the city council by writ oí certiorari. In the petition it is averred: .
“That on the nth day of July, 1921, the plaintiff duly filed in the office of the city auditor of the said city of Garrison, his petition in writing, a copy of which, marked ‘Exhibit A/ is hereto attached and made a part hereof, and thereafter caused notice of the filing of the said petition to be duly published according to law.
*867“That thereafter and on the ioth day of September, 1921, a hearing upon the said petition was held by the defendants sitting as the city council of the said city of Garrison, whereat witnesses were examined by R. L. Fraser, Esq., in behalf of the plaintiff and J. E Nelson, Esq., in behalf of the city of Garrison, a transcript of the evidence received at such hearing, marked 'Exhibit B,’ being hereto attached.and made a part hereof, and thereafter and on the same day the said mayor and city council of the said city of Garrison by resolution, a copy of which, marked 'Exhibit C/ being hereto attached and made a part hereof, denied the aforesaid petition of the plaintiff in all things.”
Exhibit B referred to in, and attached to, the petition, is a transcript of the testimony of the plaintiff, Mogaard, and one Reuter. Upon the petition and an affidavit of the plaintiff the district court issued an order citing the defendants to show cause why a writ of certiorari should not issue. Upon the hearing in the district court the defendants moved to quash, upon the following grounds, among others:
“1. That the complaint does not state facts sufficient to constitute a cause of action, and does not warrant the issuance of the writ of certiorari.
“2. That the application for the writ shows upon its face that'the city council have not exceeded their jurisdiction.
“3. That Exhibit C (copy of city council’s order denying the application to detach) attached to the complaint of the plaintiff shows upon its face that the outlet of the sewer in question does not extend upon or over the petitioner’s described land, but that the main body of the sewer does, and the resolution of the city council stating that fact is conclusive as against the petitioner.”
The trial court made an order vacating the order to show cause and denied the petition. In such order it is said:
“Counsel for all parties having stipulated the correctness of the record of the proceedings of the city council of the city of Garrison as set forth in the plaintiff’s petition and consented that all matters herein be decided and determined as fully and finally as if the court had issued its writ of certiorari in accordance with the prayer of the plaintiff’s petition, and the defendants by their return having alleged the legality of the proceedings of the city council of the city of Garrison as set forth in the plaintiff’s petition, and the court being of the opinion that such proceedings were in all respects legal and that the plaintiff’s tract of land *868in his said petition described does not come with the provisions of § 3969 of the Compiled Laws of North Dakota for the year I9I3 as amended by chap. 32 of the Laws of 1921, in that there extends upon and over the said tract of land a portion fo the main line trunk sewer of the city of Garrison, but the outlet or mouth thereof is on lands not embraced in this tract, it is hereby ordered that the order to show cause heretofore issued in this proceeding and the same is hereby vacated, and that the prayer of the plaintiff’s petition be and the same is hereby dismissed.”
It is 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 chap. 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 the body to ascertain and determine the existence of these facts and conditions. In this case the city council conducted a hearing; witnesses were sworn and testified. At the conclusion of the hearing the city council made the determination which is set forth in the majority opinion. It will be noted that that determination was based, not only upon the evidence introduced at the hearing, but upon “the personal knowledge of each and every member of the city council * * * that there has been established and now maintained, upon the said tract of land, a portion of the main line of the sewer system of said city, so constructed as to admit of sewer connection at any point thereon for the use and benefit of any person or persons so desiring,” and, further, that “the outlet of the said sewer system of the city of Garrison does not extend upon or over the tract of land maintained and described in the petition filed, but does extend over and upon other land belonging to the said city.” It seems to me that this finding of the city council is one of fact that the tract of land sought to be excluded by the petition has constructed thereon a municipal sewer other than the sewer outlet. The statute confers upon the city council the power to determine the facts-. The law provides for no 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 as to the facts is, in the absence of fraud, final and conclusive upon the courts. See State v. Fisk, 15 N. D. 219, 107 N. W. 191. See, also, State ex rel. Little v. Langlie, 5 N. D. 594, 600, 601, 67 N. W. 958, 32 L. R. A. 723; Greenfield School Dist. v. *869Hannaford 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 Supreme 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, C. L., as amended by chap. 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 of such court, tribunal, board of officer.” Section 8453, C. L. 1913. In construing similar provisions the Supreme Court of California has ruled that this latter section, which prescribes the extent of the review, has substantially the same meaning as the phrase in § 8445, supra, authorizing the court to inquire whether the “inferior courts, officers, boards or tribunals have exceeded their jurisdiction,” and that under neither section can anything but jurisdiction be inquired into. See Central Pac. R. Co. v. Board of Equalization, 43 Cal. 365. See, also, Farmers’ & Merchants’ Bank v. Board of Equalization, 97 Cal. 318, 32 Pac. 312; Security Sav. Bank v. Board of Sup’rs, 4 Cal. Unrep. 222, 34 Pac. 437; Johnston v. Board of Sup’rs, 104 Cal. 390, 37 Pac. 1046; Fickert v. Zemansky, 176 Cal. 443, 168 Pac. 891; Henshaw v. Board of Sup’rs, 19 Cal. 150; Whitney v. Board, 14 Cal. 499.
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 jurisdiction 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, North Dakota, Oklahoma, the Philippines, South Dakota and Utah.”
In Whitney v. Board, 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 *870no issue of law or fact not involved in the question of jurisdiction. Under no circumstances can the review be' 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 be detached should or should not be detached was one properly within the jurisdiction of the city ■council. And there is no question but that the city council afforded the petitioner a full hearing, and that after such hearing they made a determination. The petitioner invoked the jurisdiction of the council, and attended, and participated in, the hearing. And it would seem that he is not now in position to invoke the aid of a writ of certiorari, which reviews only questions of jurisdiction. As was said by this court in Albrecht v. Zimmerly, 23 N. D. 337, 344, 136 N. W. 240, 242:
“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 Court, 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.” Board of Com’rs of Lake County v. Platt, 79 Fed. 567, 25 C. C. A. 87. “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. Juris pp. 1036 — 1039.
The sole contention of the petitioner in this case is that the order of the city council is contrary to the evidence, and the decision of the majority of the court is devoted largely to a consideration of the sufficiency of 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, §§ 8445-*8718453, C. L. 1913. State v. Thursby-Butte Special School Dist. 178 N. W. 787. See, also, 11 C. J. pp. 202-203. Li 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 reviewing court has no power to change, annul or reverse it in a proceeding in certiorari.” 4 Cal. Juris, pp. 1106 — 1107.
It seems to me that the trial court was entirely correct in dismissing the proceeding.