(concurring specially). The above cases are in all respects similar. In the first case the plaintiff owns 158 acres in S.E.|•of section 3, township 138, range SO, on the southeast corner of Bismarck. In the second case the plaintiff owns the S.-|- of section 5, on the southwest corner of the city of Bismarck.
Under Laws, 1921, chapter 32, each'plaintiff filed with the city commissioners of the city of Bismarck a petition that their tract of land be detached from the city on the ground that it is on the border of the city and that it has never been platted or in any way used for city purposes. Each petition was denied by the city commissioners. Then each plaintiff commenced an action in the district court of Burleigh «comity, stating the facts and praying for a writ of certiorari to review *30the action of the city commissioners. The corirt made an order denying the petition for certiorari and from that order each plaintiff appeals. The statute reads;
Section 845: “A writ of certiorari may be granted by the supreme and district courts, when any inferior courts, officers, boards or tribunals have exceeded tlieir jurisdiction and there is no appeal, nor, in the judgment of the court any other plain, speedy and adequate remedy.”
Appellants claim that by refusing to grant their petition the city commissioners erred and exceeded their jurisdiction. But an excess of jurisdiction must consist of some positive and affirmative action, and not a mere failure to act. If the city commission had made an order detaching the capitol grounds from the city of Bismarck, that might he an excess of jurisdiction, but an order refusing to act on such a petition or denying the. petition, or an order to do nothing is a mere negation, and we think, right or wrong, it is not an excess of jurisdiction.
Said chapter 32 provides that on a petition in writing showing certain facts, such as the plaintiff claims to have shown in this case, the city commissioners may detach and exclude such property from the city. The statute provides for no appeal to the courts. It is not made the duty of the courts to act as city commissioners or to review on certiorari the failure of a city commission to lop off the corners of the city. Hence, in each case, the order appealed from was correct and should be affirmed.