Baker v. Lenhart

On petition for rehearing.

Per Curiam.

In this case a rehearing was ordered. Interim the filing of the former opinion and the reargument, there was a change in the membership of the court, Justices Grace and Kobinson having retired from office on January 1, 1923, and being succeeded by Justices Johnson and Nuessle. AUr. Justice Nuessle being disqualified, Judge Burr, one of the judges of the Second judicial district was called to sit as a member of the court.

After reargunient and reconsideration of the questions involved, we are entirely satisfied that the former opinion should he adhered to.

The statute- relating to the exclusion of territory from a city reads:

“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 incorporated city, town or village, and being qpon 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 he, may disconnect and exclude such territory from such city, town or village; provided, that the provisions of *40tliis section shall only apply to lands not laid out into city, town or village lots or blocks.

“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, watermains, 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 cóuncil, 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 of village.

“And, provided further, that where a sewer outlet extends upon or over said implatted 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.” Laws 1921, chap. 32.

It will be noted that a proceeding for the exclusion of territory must be initiated by petition presented to the city council or commission. That body and that body alone is vested with authority to receive and act upon such petition. In other words, the city council or commission, is vested with power-to hear evidence and draw conclusions therefrom. In making its determination the council, or commission, exercises powers jixdicial in their nature (Glaspell v. Jamestown, 11 N. D. 86, 88, 88 N. W. 1023; Mogaard v. Garrison, 47 N. D. 468, 182 N. W. 760), and it cannot be compelled by mandamus to decide the application in any particular Avay. Mogaard v. Garrison, supra.

^lanifestly a city commission has power to deny as well as to grant a petition for the exclusion of territory. The power to entertain and hear a petition necessarily implies the poAvcr to deny it. It is true, the statute says that when certain facts exist the territory shall be excluded, but it vests the city commission, and it alone, Avith atithority to ascertain whether the facts exist. In a sense there- is a duty incumbent upon all boards and tribunals to decide a controversy only one way In all cases Avhere the evidence is such that reasonable men can draw only one conclusion therefrom. That duty rests not- only upon boards, but upon courts. Thus if the evidence in a case is such that *41reasonable men in flic exercise of reason and judgment can draw only one conclusion therefrom, it is the duty of the court in which tho case is tried to decide the case in favor of the party who the law says is entitled to prevail. That is true whether the case is or is not submitted to a jury. If such case is submitted to the jury under proper instructions, it is the manifest duty of tho jury to return a verdict in favor of the party who under the undisputed evidence is entitled to it; if the case is decided by the trial judge without a jury the same duty lusts upon him; yet it will hardly he asserted that the failure of the jury or the trial judge to perform their duty in such eases constitutes an excess of jurisdiction. All will agree that it will constitute only an error of judgment. And error of judgment on the part of the tribunal authorized to hear and determine is neither want nor excess of jurisdiction. Hauser v. State, 33 Wis. 678; Arnold v. Booth, 14 Wis. 180; Patterson Land Co. v. Lynn, 44 N. D. 251, 254, 175 N. W. 212. See also in Ex parte Bigelow, 113 U. S. 328, 28 L. ed. 1005, 1006, 5 Sup. Ct. Rep. 542.

This is not a case where the city commission has proceeded without having before it a petition, or has acted upon a petition without affording the parties interested an opportunity to be hoard. Nor is it a ease where having been petitioned to inquire into and determine one matter, it has conducted an inquiry outside thereof and determined some question not within the inquiry it was asked to conduct. In this case the appellant appeared by counsel and was permitted to make whatever showing he desired to make. It is conceded that a full hearing was afforded. After such hearing the commission made a determination of the application on the merits thereof. The jurisdiction of the commission was not questioned. No evidence was adduced having any hearing on the question of jurisdiction. The appellant invoked the powers of the commission and presented a petition setting forth his claims regarding the lands which he asked to have excluded. He asked the commission to enter upon tho inquiry as to whether such lands ought or ought not to he excluded. It acted upon his request. It entered upon the inquiry. It completed the inquiry and arrived at the conclusion that the facts were not such as appellant in his petition had asserted them to he. It found the facts to he such as not to bring tlic land sought to be excluded within the provisions *42of the statute. It will be noted tliat the statute does not require the city council to preserve the evidence adduced upon the hearing. Nor is any provision made for a review of the action of the city council, or commission, by any other body or tribunal, although the legislature has made provision for such review in cases where it is sought to annex adjacent territory to cities. Laws 1916, chap. 68.

In the former opinion reference was made to certain California decisions, construing statutes quite similar to §§ 8445-8453, Clomp. Laws, 1913. On re-argument attention was called to the decisions of the Supreme Court of California in McClatchy v. Superior Ct. 119 Cal. 419, 39 L.R.A. 691, 51. Pac. 696; Schwarz v. Superior Ct. 111 Cal. 106, 43 Pac. 580, and Younger v. Superior Ct. 136 Cal. 682, 69 Pac. 485, and it is asserted that the principles announced in these cases are contrary to the views expressed in the former opinion in this case. The contention is not well founded.

In the. NcOlatchy Case the petitioner had been adjudged guilty of contempt. The record showed that he was refused an opportunity to present his defense in the trial court. In other words, he was denied an opportunity to be heard, and the supreme court of California held lhat ho had been denied the due. process guaranteed to him by the Constitution. In other words, the supreme court of California held the situation to he precisely the same as though judgment had been pronounced without notice of hearing or any opportunity of hearing at all. In concluding its opinion the court said:

“And, quoting from Galpin v. Page, 18 Wall. 350, 21 L. ed. 959, it is said : ‘It is a rule as old as the law, and never more to be respected than.now', that no one shall be personally bound until he has had his day in court, by which is meant until he has been duly cited to appear- and has been afforded an opportunity to be heard. Judgment without such citation- and opportunity wants all the attributes of a judicial determination; it is judicial usurpation and oppression, and can never be upheld where justice is justly administered.’

“These considerations make it manifest that petitioner at his trial in the court below was denied that ‘due process of law’ requisite to a valid conviction; arid for that reason the order convicting him of contempt must be annulled.

“It is so ordered.”

*43In the preceding portions of the opinion the court, among other things, said:

“It is contended by respondent that, even if the action of the court was wrong, it was error merely, which cannot be reviewed on certiorari; that the court having jurisdiction of the person and subject matter, the mere method in which it exercised such jurisdiction cannot be inquired into in this proceeding, which looks only to the question of jurisdiction. If the premise were correct, the conclusion icould undoubtedly follow. But with the view that the action involved no more than mere error we cannot coincide. It was error, certainly, but it was more than that. It was a transgression of a fundamental right guaranteed to every citizen charged with an offense, or whose property is sought to be taken, of being heard before he is condemned to suffer injury. Any departure from those recognized and established requirements of law, however close the apparent adherence to mere form in method of procedure, which has the effect to deprive one of a constitutional right, is as much an excess of jurisdiction as where there exists an inceptive lack of power. “The substance and not the shadow determines the validity of the exercise of the power.’ Postal Teleg. Cable Co. v. Adams, 155 U. S. 689, 698, 39 L. ed. 311, 316, 5 Inters. Com. Rep. 1, 15 Sup. Ct. Rep. 260.

“While the writ of certiorari is not a writ of error, ‘it is nevertheless,’ as suggested in Schwarz v. Superior Ct. 111 Cal. 112, 13 Pac. 580, ‘a means by which the power of the court in the premises can be inquired into; and for this purpose the review extends not only to the whole of the record of the court below, but even to the evidence itself, when necessary to determine the jurisdictional fact/ ”

In Schwarz v. Superior Ct. the petitioner was adjudged guilty of contempt, the charge being that he had violated a certain in junctional order. The order in question contained certain provisions mandatory in character and other provisions prohibitory in character. An appeal had been taken to the supreme court and all the mandatory provisions were “stayed and suspended” pending the appeal, while the prohibitory provisions remained in force. 111 Cal. 106, 43 Pac. 581. The judgment of contempt was general in. terms. That is, the judgment did not show whether the petitioner had been found. guilty of and sentenced for having violated the mandatory or the prohibitory pro*44visions of tlie injunctional order. In other words, a situation was presented where it was necessary to examine the evidence in order to ascertain whether the Superior Court had found the defendant guilty of violating that portion of the injunctional order which was suspended by the appeal and had been withdrawn from its jurisdiction, or whether it had found him guilty of having violated provisions of the order unaffected by the appeal and which the Superior Court had power to enforce. The contention was advanced that on certiorari the Supreme Court was concluded by the findings in the judgment of contempt itself and could not go behind them. In answer to that contention, the ■court said:

“The objection that we are not at liberty to go beyond the recitals ■or findings in the judgment itself, in reviewing the action of the court below, is not well taken. While the writ of review is not a writ of error, and is not a means by which, as upon appeal, the mere manner of conducting the proceedings, the rulings of the court upon questions ■of evidence, and other matters within the jurisdiction, involving the merits, however erroneous they may be, can be reviewed, it is, nevertheless, a means by which the power of the court in the premises can he inquired into; and for this purpose the review extends, not only to the whole of the record of the court below, but even to the evidence itself, where necessary to determine the jurisdictional fact/’

In Younger v. Superior Ct. “a complaint in partition made the judge of the superior court a party defendant, and alleged that he claimed to have some interest in the land, but that he had no interest therein. After service of summons on the judge, without answering or appearing in the cause, he, of his own motion, and without notice to any partyj caused an order to be made and entered striking the complaint from the files, reciting that the allegations therein as to him were false, deceitful and abusive of the process of the court, and made for the sole purpose of disqualifying him in the trial of the cause.” 136 Cal. 682, 69 Pac. 485. The order was nonappealable, and there was no other plain, speedy or adequate remedy. 186 Cal. 682, 69 Pac. 487.

These California decisions need no further discussion. Clearly they jire not authority for the proposition that the findings of the city commission may be set aside on the ground that they are without support in the evidence. On the contrary, these cases recognize that on *45certiorari, “upon every question except the mere question of power, the action of the inferior court is final and conclusive” (Re Hughes, 159 Cal. 360, 113 Pac. 684) and the inquiry was so restricted. In the TlcOlatchy and Younger Oases, a party was denied an opportunity to be heard. That is there was a denial of due process. And in tire latter case the order was made- by a judge who was a party to the cause. In the Schwarz Case a judgment, of contempt was pronounced for the alleged violation of an order (which so far as the acts in question were concerned) was no longer within the jurisdiction of the superior court. No such condition exists in the case at bar. Here there was no denial of due process. There was no action on a matter which the city commission had no authority to determine. In the absence of statutory provision no territory can be excluded from a city. The legislature has made provision that territory may be excluded from a city upon application presented to the city council, or commission. The authority to entertain such an application and to determine whether the facts are such as to justify or require the exclusion of the territory is vested exclusively in the city council, or commission. In this case, the appellant presented an application to the board authorized by statute to receive it, notice was given of the hearing and full hearing afforded. The appellant was permitted to introduce any and all evidence he desired to offer, and fully present the matter to the city commission. There is no contention that he “was in any manner prevented from having a full and complete hearing. On the contrary, it is conceded that* such hearing was afforded. There is no complaint on the part of the appellant of any act on the part of the city council, until it made its decision on the merits. In other words, the sole complaint on the part of the appellant is directed at the determination which the city commission made on the merits of the application.

Certain language used by the supreme court of California in Roberts v. Police Ct. 185 Cal. 65, 195 Pac. 1053, seems quite applicable here. In that case the petitioner was convicted in the police court of the city and county of San Francisco of a public offense triable in that court. He appealed from the judgment of the police court to the superior court of said city and county, which under the laws of California was authorized to entertain and determine such an appeal upon a statement of-the case settled by the police judge. 185 Cal. 67, 195 Pac. *461051. The superior court, after a hearing, made its order affirming the judgment of the police court. The petitioner then sought to have the proceedings reviewed on certiorari. In its opinion in the case, the supreme court of California said:

“Jurisdiction of the superior court to entertain and determine the appeal is not questioned. That jurisdiction was invoked by petitioner himself, who, within the time and in the manner required by law, took Ids appeal to such court from the judgment of the police court, and the statute gives to the court jurisdiction to entertain such an appeal when duly taken. The appeal was heard upon a statement of the case as required by law. The statute gives to such court the power, upon such appeal, to reverse the judgment of the police court and to grant a new trial, or to affirm the judgment of the police court. Tt must determine the appeal, reversing or affirming the judgment of the. police court as it deems one or the other course proper in view of the matters shown by the statement of the case. Whichever it does it is acting in the exercise of its lawful jurisdiction, and not in excess of such jurisdiction. It has the same power to affirm in any case that it has to reverse, and the mere fact that its conclusion is wrong does not make its action an excess of its jurisdiction. In such case we. have simply error in the exercise of jurisdiction. All that petitioner’s contention amounts to in this regard is that the superior court should .have reversed the judgment of the police court, and that it erred in affirming it. The substantial contention is that the statement of tin-case showed that the evidence on the trial in the police court was not sufficient to establish the guilt of the petitioner of the offense charged, If that be true, the superior court erred in affirming the judgment, but mere errors in the exercise of jurisdiction are not reviewabh: on certiorari. It seems superfluous to cite authorities in support of these well-settled propositions, but if authority be desired, it is to be found in the opinion of this court in Re Hughes, 159 Cal. 360, 113 Pac. 684. No ground appears, therefore, upon which the order of the superior court affirming the judgment of the police court may be here assailed.

“It may properly be noted that there is in fact no force in the claim of petitioner that the judgment of the police court was in excess of its jurisdiction. That claim is based on the same contention, insufficiency *47of evidence to establish guilt of the offense charged. Assuming this contention to be well based, there was no lack of jurisdiction to convict the defendant. What we have said with regard to the superior court on this point is equally applicable here. Where a court is invested with jurisdiction to determine the question of the guilt or innocence of one charged with a public offense, as was the police court in this case, by the filing of the complaint and by acquiring jurisdiction over the person of the defendant, its determination on the question of guilt or innocence whether based on sufficient evidence or not, is a determination arrived at in the exercise of Us jurisdiction, and however erroneous it may be, it is not void for want of power in the court to render the decision. Invested with the jurisdiction to determine the matter, the court has the power to determine it wrongly upon the evidence as well as correctly, and, under our law, the defendant's only remedy in the event of an incorrect decision is by appeal. On certiorari, as approvingly quoted in Matter of Hughes, supra, ‘upon every question except the mere question of power, the action of the inferior tribunal is final and conclusive.’ In such a case a claim of insufficiency of evidence to show guilt of the offense charged does not go to the jurisdiction. It has been said that ‘an exception to the rule that the sufficiency of the evidence will not be reviewed is made when the question is whether jurisdictional facts, were or were not proved.’ Stumpf v. San Luis Obispo County, 131 Cal. 364, 367, 82 Am. St. Rep. 350, 63 Pac. 663, that is, whether facts upon which the jurisdiction of a board or inferior tribunal depends were or were not proved. Wc have in our reports many decisions wherein this exception has been applied, the case in which this declaration was made being one, and the case of Thrasher v. Board of Medical Examiners, 44 Cal. App. 26, 185 Pac. 1006, relied on by petitioner, being another. But the exception has no application whatever to a tribunal invested with jurisdiction to try and determine a fact in issue, with reference to proof of that fact. In such ease that fact is not what is known as a ‘Jurisdictional fact.’ It is the fact to be determined by the court having jurisdiction to determine it, and the determination of such court thereon is not void, however defective the evidence upon which it is based.”

Attention has been called to the decisions of this court in Murphy v. *48District Ct. 14 N. D. 542, 105 N. W. 728, 9 Ann. Cas. 170; Zinn v. District Ct. 17 N. D. 135, 114 N. W. 472, and Lowe v. District Ct. 48 N. D. 1, 181 N. W. 92, as bearing on the question of the extent of review afforded on certiorari. These cases all involved the exercise by tills court of its constitutional power of “general snperintend•ing control over all inferior courts,” and manifestly have no application in cases like this, where the writ of certiorari if available at all is issuable under § 8445, Comp. Laws, 3 93 3.

The Constitution vests in the supreme court: (1) Appellate jurisdiction to decide finally all ordinary litigation (Atty. Gen. v. Chicago & N. W. R. Co. 35 Wis. 425, 518; State ex rel. Lemke v. District Ct. 49 N. D. 27, 186 N. W. 381, 386); (2) superintending jurisdiction over all other courts to control the- course of ordinary litigation in them (Atty. Gen. v. Chicago & N. W. R. Co. and State ex rel. Lemke v. District Ct. supra) “where those courts are proceeding Avithin their jurisdiction, hut by mistake of law, or wilful disregard of it, are doing a gross injustice and there is no appeal or the remedy by appeal is inadequate” (State ex rel. Whiteside v. First Judicial Dist. Ct. 24 Mont. 539, 562, 63 Pac. 395); and (3) original jurisdiction of certain proceedings at law and in equity, — reserved for the use of the state itself Avhen it appears to be necessary to vindicate, or protect its prerogatives or franchises, or the liberties of its people (State ex rel. Linde v. Taylor, 33 N. D. 76, 84, 85, L.R.A.1918B, 156, 156 N. W. 561, Ann. Cas. 1938A, 583; State ex rel. Steel v. Fabrick, 17 N. D. 532, 536, 117 N. W. 860).

The constitutional grant of superintending jurisdiction reads:

“The supreme court . . . shall haA^e a general superintending control over all inferior courts under such regulations and limitations as may be prescribed by lav?.” N. D. Const. § 86.

In carrying out the constitutional direction to “prescribe by law” regulations and limitations for the exercise of the superintending jurisdiction the legislature enacted a laAV providing: — “The supreme court ... in its superintending conIrol over inferior courts may issue such original and remedial Avrifs as arc necessary to the proper exercise of such jurisdiction.” Comp. Laws, 1913, § 7339. This statute Avas enacted in 1891 (LaAvs 1891, chap. 118) and is the only legislative enactment purporting to regulate the. issuance of Avrits by *49the supremo court in the exercise of its superintending jurisdiction. In other words, the legislative assembly has seen fit to place no limitations or restriction whatever upon the widest possible exercise of the power granted by the constitution. It will be noted that neither the constitution nor the statute purports to name the writs which the court may issue in the exercise of its superintending jurisdiction, or to •proscribe the functions of any writ which may be issued. Hence, in the exercise of its superintending jurisdiction, the court not only may issue all common law writs applicable to superintending control over inferior courts, but, if the exigencies of the ease so require it may “modify and enlarge the terms” of such writs, State ex rel. Fourth Nat. Bank v. Johnson, 103 Wis. 591, 51 L.R.A. 33, 79 N. W. 1081, or “failing adequate common law writs, the court might well devise new ones,” Atty. Gen. v. Chicago & N. W. R. Co. 35 Wis. 425.

At common law, the writ of certiorari was used for two purposes: First, as an appellate proceeding for the re-examination of some action of an inferior tribunal; Second, as an auxiliary process to enable the court to obtain further information in respect to some matter already before it for adjudication. See 11 C. J. 89; 4 C. J. 500 ; 29 Cyc. 196. It is apparent that the, certiorari may be used as an auxiliary process in aid of all three grants of jurisdiction vested in this court. It may be used in aid of the original jurisdiction to compel records to be certified here that become pertinent in a proceeding pending before this court. In the exercise of the superintending jurisdiction, certiorari may issue as a preliminary writ to compel the records of the inferior court to bo certified up to this court, so that this court may act intelligently in the matter and determine, whether some action has been taken justifying or requiring the exercise by this court of its superintending control over such inferior court, and, what the character of the writ, if any, to be issued by this court, should be. Such writ may also bo issued to cause a record to be corrected or defects therein to be supplied in any appeal or proceeding pending before the court. See 4 C. J. 500. It is, we think, obvious that § 8445, Comp. Laws, 1913, was intended to proscribe the functions of certiorari as a writ of review, that is, where it was sought to be utilized for the purpose of re-examining the action of some inferior tribunal, board or officer; and that that section was not intended to apply in cases where *50certiorari was used as an auxiliary process. Where it is so used, the question of excess of jurisdiction is not involved. Neither, we think, does § 8-145, supra, applying to certiorari where it is invoked in aid of the superintending jurisdiction. Section 8445, Comp. Laws, 1913, became a part of the law of this jurisdiction long before the adoption of our constitution. Dak. Terr. Code Civ. Proc. 1877, § 685.

The distinction between certiorari as provided by § 8445, Comp. Laws, 1913, and certiorari when issued, under § 7339, Comp. Laws, 1913, in the exercise of the superintending jurisdiction has been repeatedly recognized by this court. Thus it will be noted that under the express terms of § 8445, a writ of certiorari as therein provided will issue only in cases where “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.” This court has repeatedly ruled that certiorari will not lie under § 8445, Comp. Laws, 1913, in any case where there is a remedy by appeal. See, Lewis v. Gallup, 5 N. D. 384, 67 N. W. 137; St. Paul M. & M. R. Co. v. Blakemore, 17 N. D. 67, 114 N. W. 730; Schafer v. District Ct. 21 N. D. 476, 131 N. W. 240; State ex rel. Brunette v. Pollock, 35 N. D. 430, 160 N. W. 511. In construing § 8445, supra, in St. Paul, M. & M. R. Co. v. Blakemore, supra, this court said: “It is apparent that the remedy by certiorari is not authorized in any case where there is a remedy by appeal. This statutory provision is so plain that its meaning is not open to question.” 17 N. D. 73. This rule, however, does not apply in cases where certiorari is invoked in aid of the superintending jurisdiction. In such cases the writ is not necessarily barred because the action sought to be reviewed or controlled may be reviewed on appeal.

Where certiorari is invoked in aid of the superintending jurisdiction, if the exigencies of the case require, the writ may issue and appropriate action taken even though the action which it is sought to have corrected or annulled is in fact appealable. State ex rel. Fourth Nat. Bank v. Johnson, 103 Wis. 591, 51 L.R.A. 33, 79 N. W. 1081; State ex rel. Lemke v. District Ct. 49 N. D. 27, 186 N. W. 381, 398; State ex rel. Red River Brick Corp. v. District Ct. 24 N. D. 32, 33, 138 N. W. 990.

When this court is asked to exercise its superintending jurisdiction, *51tbc writ of certiorari may bo issued alone as a preliminary writ requiring the record of the inferior court to he certified up so as to enable this court to determine whether a case is presented requiring or justifying any action, and if so, what such action should be — State ex rel. Red River Brick Corp. v. District Ct. 24 N. D. 28, 32, 138 N. W. 988; or it may he issued ancillary to some other writ to cause the record to he certified up for consideration upon the inquiry instituted by such other writ. State ex rel. Fourth Nat. Bank v. Johnson, supra. In ¡he case last cited, the supreme court of Wisconsin issued an alternative writ of mandamus upon the application of the relator, and issued a writ of certiorari, on its own motion, auxilliary to the writ of mandamus. 103 Wis. 596.

In State ex rel. Red River Brick Corp. v. District Ct. supra, the court said:

"When a proper ease arises for the exercise of this power, the writ necessary to fit the ease may take the nature of a command or of a prohibition, or, to enable the court to determine its character, it may he found necessary to issue a preliminary writ requiring records to be certified up, and this may be dono. AVc are satisfied that the authorities to which reference has been made are applicable here, and that their determination of the purpose of the Constitution framers in granting this superintending control is correct. It has been so intimated in several of the cases decided by this court, to which reference has been made. AVhether or not the remedy hv appeal is adequate or speedy, must be determined by the exercise of the sound discretion of this court, applied to the facts in each given case.”

In the eases where this court has exercised its superintending jurisdiction in reviewing orders in criminal cases, the writ directing the records to be certified up to this court was in fact a preliminary writ issued for the purpose of supplying this court with necessary information, so that it could act intelligently in the matter and determine' whether some action had been taken by the lower court, justifying or requiring the exercise by this court of its superintending control and further determine what the character of the writ, if any, to be issued by this court should be.

Reference has also been made to the decisions of this court in Schwahn v. District Ct. 36 N. D. 6, 161 N. W. 566, and State ex rel. *52Wehe v. Frazier, 47 N. D. 314, 182 N. W. 545. These decisions in no manner sustain the contention of the appellant in this case..

The first case involved, an order made by the district court relating to certain moneys which had been deposited as bail. No action or proceeding of any kind was pending relating to the ownership of the money. No question was raised in this court as to the propriety of the remedy; nor was there, any consideration as to whether the appellate or the superintending jurisdiction of this court was invoked. However, in its opinion in the. case, this court stated that the ease fell within the rule announced in State ex rel. Enderlin State Bank v. Rose, 4 N. D. 319, 28 L.R.A. 593, 58 N. W. 514, and was controlled by that case. And in the case cited the writ of certiorari was issued by this court “under the power of superintending control over inferior tribunals, vested in this court by the Constitution.” 4 N. D. 337.

In State ex rel. Wehe v. Frazier, there was a denial of the constitutional right of due process. In that case a public officer, who under the statute was entitled to notice and hearing, was removed from office by the governor without being afforded a bearing. In other words, the governor made an order which he bad no power to make, for the statute granting the power to remove imposed as an essential jurisdictional prerequisite notice of bearing and opportunity to be heard to the officer sought to he removed. The question there presented was one going directly to the jurisdiction of the governor to make a determination of the. removal proceeding. No question was involved as to whether the findings of the governor wore supported by the evidence. On the contrary this court expressly recognized that that question could not he reviewed on certiorari. The court said:

“The writ will lie only if the Governor has exceeded his jurisdiction. It follows that it will not lie to review the sufficiency or the insufficiency of the evidence, or thq merely erroneous orders of the Governor, if the Governor acted within his jurisdiction.”

It is also contended that the decision in this case is inconsistent with Brissman v. Thistlethwaite, 49 N. D. 417, 192 N. W. 85. The contention is without merit. That case involved a question within the genera] jurisdiction of the district court. Upon an application to that court for a writ of certiorari to a justice of the peace, the parties appeared in person. The question o.f the propriety of the remedy was *53raised, but afterwards withdrawn and tho district court specifically requested to assume jurisdiction of and decide tho controversy on the merits thereof. The decision in that case; does not hold that the questions there presented were reviewable on certiorari. On the contrary the decision is rather based upon the assumption that, they were not so reviewable; but that the parties by their acts transformed the proceeding into one where the district court was not limited by the provisions of § 8445, Comp. Laws, 1913. The decision in the Brissman Oase would of course have been the same if no writ at all had been issued. The decision was based upon tbe theory that tho parties to tho controversy voluntarily appeared and submitted certain questions within the general jurisdiction of the district court to that court for determination. The district court had unquestioned jurisdiction of the subject-matter, i. e., power to bear and determine questions of tho nature there involved (4 Words Phrases, 3880); and this court found that upon the record submitted the parties expressly submitted themselves to the jurisdiction of the court and asked the court to determine the questions presented. In other words, a situation was presented where, not by virtue of the writ of certiorari but, by the acts of the parties a controversy within the general jurisdiction of the district court was submitted to that court for determination. That situation, however, does not exist in the case at bar. The subject-matter here, viz.: the exclusion of territory from a city, is one fundamentally legislative, in character, Glaspell v. Jamestown, 11 N. D. 86, 88 N. W. 1023, and the legislature lias said that all applications for the exclusion of territory 'must be addressed to and determined by the city council, or commission, of tbe city from which tbe territory is sought to bo excluded, and it bas vested no other body or tribunal with power to review its determination on such application.

It is further contended that the situation presented upon the record here is practically identical with that presented in Mogaard v. Robinson, 48 N. D. 859, 187 N. W. 142, and that oil tbe authority of that case the appellant here should prevail. The case cited involved an application for the exclusion of certain territory from the city of Garrison. The case was decided by a divided court. The dissenting member was of the opinion that upon the record there presented, no want or excess of jurisdiction appeared; that the matter having been duly *54presented to the city council and hearing afforded, its findings were final, and not subject to review by the courts. The majority opinion was predicated on the proposition that the question of remedy was not involved; that the parties, in effect, had agreed to submit to the court for determination the question as to the meaning of the term “sewer outlet” in chapter 82, Laws 3 921. The court said:

“We do not understand that any question of procedure is involved upon this appeal, for upon oral argument respondents disclaimed any contention as to the remedy and in their brief it is stated:

"It is plain that but one point is involved: Should the city council hare, excluded this trad upon Ike showing made-. The were willing that this decision should be reviewed by Judge Nuessle, and we now submit lo the judgment of the supreme court the same question." (Italics are ours.)

“It thus appears that the respondents are desirous of terminating the controversy through a construction of the controlling legislation applied to undisputed facts. In this state of the. record we must regard the case as turning upon the meaning of the, words employed in the statute, ‘where a sewer outlet extends upon or over said unplatted lands/ and upon the facts adduced with reference to the character of that portion of the sewer constructed upon the petitioner’s land. Counsel for the appellant contend that this language is descriptive of a sewer of any length which is used only as an outlet for the system. On the other hand, counsel for the respondent insist that it is descriptive only of that part of a sewer known as the mouth or end of the sewer, and, possibly, land lying some distance beyond the point where the contents are discharged.” (48 N. D. 863, 864).

This language is self-explanatory. Whatever differences of opinion there may be as to the actual effect of the holding in Mogaard v. Kobinson, supra, as applied to the facts in that particular case, the language (pioted indicates that the court acted on the theory that the city council and the petitioner, in effect, had agreed to submit to the district court for determination the question of law as to the meaning of the term “sewer outlet” as contained in chapter 82, Laws 1921; and that on the appeal to this court they assumed the same attitude. In the instant case, however, a much different situation exists. In his brief on this appeal, appellant says:

*55“Tbe questions for decision by tbe court are:

(a) Is certiorari tbe proper proceeding?

(b) Are tbe determinations of fact and law by the board of city commissioners subject to review? If so, to what extent?

Tbe questions which appellant thus states are tbe first two presented on this appeal were fully discussed by counsel for the respective parties on the original oral argument, and.were fully considered and 'decided in the former decision in this case. The questions were again fully discussed on the reargument. These questions have received our careful consideration and are determinative of this appeal. They were correctly decided in the former opinion, and that opinion will stand.

Christianson, Birdzell, Burr, and Johnson, JJ., concur.