(further dissenting after rehearing). Now after a rehearing and long consideration, for the reargument was had on January 16th, 1926, the majority opinion, labelled a per curiam opinion, asserts its adherence to the majority opinion of the court, formerly rendered. In this per curiam opinion, now rendered after rehearing there is discussed alone a procedural question, namely, the reason why certiorari is not the proper or appropriate remedy. At the beginning, this majority opinion states that it has reconsidered the questions involved. Of course, this statement is not quite correct. The majority opinions never have considered the real questions involved. They have refused so to do although the trial court had no hesitancy nor compunctions in so doing. The proceedings had in the trial court must be first considered.
This is an appeal which seeks to review an order of the, district court in certiorari proceedings. The parties stipulated that such order to show cause should be taken and considered for all purposes as a writ of certiorari. The Commission did not question, by motion to quash or otherwise, the jurisdiction of the district court or the propriety of the remedy. The Commission interposed an answer to the petition. In this answer no questions were raised concerning the propriety of the remedy. Specifically, the Commission alleged that the land involved lay wholly within the limits of the city and was surrounded on three sides by land lying wholly -within the limits of the city. After hearing, *56the trial court, upon the merits, found that the land involved did not come within the provisions of chap. 32, Laws 1921, in that the exclusion thereof from the limits of the city would leave the boundary of the city irregular. It accordingly ordered the petition to be dismissed. From such order the commission has appealed and now, for the first time in this court, raises the question of the propriety of the remedy.
The proceeding in the instant case is practically the same as that maintained in Mogaard v. Robinson, 48 N. D. 859, 187 N. W. 142. In that case it appears that a petition was presented to the city council of Garrison to exclude certain territory. A hearing was had and the petition denied. The trial court issued an order to show cause why a writ of certiorari should not issue. The city moved to quash the order. The trial court, after denial of the motion to quash and hearing on the merits, dismissed the order upon the ground that the tract of land involved did not come within the provisions of chap. 32, Laws 1921. An appeal was taken to this court from such order of the trial court. This court reversed the order and remanded the case with directions to enter the appropriate judgment. In that action the trial court determined the subject-matter upon the merits. As the opinion in that case indicates, the parties submitted the subject matter to this court upon the merits.
This case can be distinguished from the case at bar only in the following particular, viz.: in the former case, objection was made to the propriety of the remedy in the trial court; in the latter case such objection was for the first, time raised in this court. It may further be noted that the majority opinion in the instant case is, in substance, practically word for word, a copy of the dissenting opinion in Mogaard v. Robinson, supra. Thus, practically speaking, does the dissenting opinion in Mogaard v. Robinson become the majority opinion in this case. The inconsistency of the court’s position is apparent. For the first time in this court, after the parties have submitted (he real questions involved in a certiorari proceeding for the decision,of the trial court, one of them, to uphold that decision, presents the objection now for the first time that certiorari was not the appropriate remedy. To illustrate the position that the majority opinion now takes, a consideration of the recent cases of Brissman v. Thistlethwaite, 49 N. D. 417, 192 N. W. 90 may be had. The two *57cases may be considered as one. In that case plaintiff was arrested for false advertising and for illegally representing himself as a certified public accountant. In justice’s 'court, plaintiff, there a defendant, objected to the jurisdiction of the justice upon the ground that the complaint had not been approved by the state’s attorney. This objection was overruled. The plaintiff them made an application to the district court for a writ of certiorari. The district court issued an order to show cause. The justice, by demurrer to- the petition, questioned the right to issue the writ. The demurrer was overruled. A writ v^as thereupon ordered. In his return, the justice specifically alleged that he possessed jurisdiction in the two criminal actions; that the petitioner had an adequate remedy at law and a right of appeal from the action of the justice. Upon the hearing, the justice waived the issuance of a writ and informed the court that he had no further defense, to offer. The district court found that the warrants of arrest had never been submitted to, nor approved by, the state’s attorney, the attorney general, or his assistants. Accordingly, the trial judge directed the writ of certiorari to issue, restraining and enjoining further proceedings in the criminal actions before the justice. The justice appealed from the order of the district, court to this court-. Upon such appealj he specifically questioned, before, this court, the propriety of the remedy. This court, in affirming the order of the trial court and upholding the application of a writ of certiorari to the proceedings before the justice, held as follows: That, concerning the review on certiorari of the action of the justice, the district court has appellate jurisdiction in criminal actions tried before the justice; that, if an order by the justice had been made holding the defendant to answer, it was clear that defendant would have been entitled to be released upon habeas corpus proceeding's in the district court; that the ordinary presumptions, applicable to appeals apply to an appeal from a certiorari proceeding; that the appellate court will only consider the errors which are urged before it and specifically pointed out; that the review is confined iomatbers or objections urged below; that, from the proceedings had in the trial court-, after the trial court had indicated its views concerning the issuance of a writ, the justice waived the issuance of a writ and stated that he had no defense to offer; that, accordingly, this court was of the opinion that the question of the propriety of the remedy -was not *58before il; that,'further, without deciding whether the approval of a criminal complaint by a state’s attorney is a jurisdictional prerequisite, a justice.of the peace is not regularly pursuing his authority in the manner prescribed by law when he issues a warrant of arrest upon a criminal complaint which expressly, in another similar action, has been disapproved by tlie state’s attorney. In the further opinion, of this court, upon the petition for rehearing in that case, this court said :
“Appellant invokes the rale that certiorari lies only to review ads in excess of jurisdiction. The rule was recognized, and the statutory provisions announcing it were set forth, in the former opinion, but for reasons therein stated the rale was held not applicable in this case. In other words, we held that under the facts disclosed or inferable from the record in this case, we are not concerned loiih the propriety of the, remedy. As pointed out, the district court is one of general jurisdiction. The ultimate question which gave rise to the litigation was one within the general jurisdiction of that court. And for reasons stated in the former opinion it must he assumed on this appeal that the objection first interposed by the justice of the peace to the propriety of the remedy was abandoned, — that the justice' of the peace waived the issuance of a writ’ of certiorari and in effect asked, or at least consented, that the district court decide the entire matter in issue at said time and place. This court has repeatedly held that when a case, which involves a question within the general jurisdiction of the district court, is presented to the district court, with either the express or tacit consent of the parties that the question so presented be determined, the, question of the propriety of the lemecly becomes immaterial and cannot be subsequenlly raised.
“Wo have not, as appellant contends, hold that the practice adopted in this oast is the proper mode of determining the sufficiency of a criminal complaint. "We have merely held that where, as here, the matter is presented to the district court, and that court is in effect asked to determine whether there is in fact and in law a criminal action pending before a justice of the peace; and the court determines lhaf question, that a party who has incited suele decision cannot afterwards question the propriety of the remedy utilized in the first instance in bringing this matter before the district court for determination.”
lint, the per curiam opinion seeks to justify the holding in these *59'.Brissman cases by explaining tliat the district court through act of the parties was granted, a jurisdiction. Even so, a writ of certiorari was the instrumentality used. IIow does such reasoning apply to the case at bar when the parties submitted to the jurisdiction of the trial court without question?
Those cases cited, somewhat at length, simply illustrate the inconsistent position now taken by the majority opinion herein. If the principles applied and followed in the cases cited do not here apply, then the application of the principles in such cited cases should be directly overruled, so that the bar may not be misled through the rule of stare decisis. Assuredly, it is evident that the dissenting opinion in Mogaard v. Robinson, supra, becomes now the majority opinion in this case.
The per curiam majority opinion quotes the statute concerning the exclusion of territory from a city and further cites Mogaard v. Garrison, 47 N. D. 468, 182 N. W. 758, to the effect that where a city commission is invested with power to hear evidence and determine the existence or nonexistence of certain facts, it exercises powers judicial in nature. Then follows the deduction that the city commission has the power to deny as well as the power to grant a petition for the exclusion of territory; that in the city commission is vested the authority to ascertain whether the facts exist; that, in a sense, there is a duty incumbent upon all hoards and tribunals to denúde a controversy only one way in all cases where the evidence is such that reasonable men can draw only one conclusion therefrom; that where the evidence in the case is such that reasonable men can draw only one conclusion therefrom, the duty is incumbent to decide the case in favor of the party whom the law says is entitled to prevail but that the decision in such case is not an excess of jurisdiction hut is an error of judgment.
T>m such logic is based the reasoning that a petition was presented; a full hearing accorded and a determination made upon the merits; that pursuant thereto it found the facts to he such as not to bring the land sought to he excluded within the provisions of the statute. In other words, npon this reasoning, the precise position is taken by the per curiam opinion that if a city commission, upon conceded and stipulated facts, concludes that black is white and that two and two make five and not four, then such conclusion is an error of judgment concerning which the courts are powerless to afford a suitor any relief. Con*60cerning this reasoning it may he well to inquire why this court does not term the action of a district court an error of judgment when he has refused to act and call in another judge to preside at a trial pursuant to the mandatory duty imposed upon him by statute. Gunn v. Lauder, 10 N. D. 389, 87 N. W. 999. Likewise, where the district court has wrongfully refused to settle a statement of the case. Kaeppler v. Pollock, 8 N. D. 59, 76 N. W. 987; Tuttle v. Pollock, 19 N. D. 308, 123 N. W. 399. Likewise, where a district court judge has not entertained a motion for new trial upon grounds of newly discovered evidence. State ex rel. Berndt v. Templeton, 21 N. D. 470, 130 N. W. 1009. Likewise, where the court, through erroneous construction of law, has not proceeded to a hearing. State ex rel. Heffron v. District Ct. 26 N. D. 32, 143 N. W. 143. Furthermore, in an early case this court quoted with approval the statement that the function of the writ of certiorari is to keep magistrates within the compass of their powers. State ex rel. Enderlin State Bank v. Rose, 4 N. D. 319, 333, 26 L.R.A. 593, 58 N. W. 514. Of course, this holding applies to inferior boards and tribunals as wadi as to inferior courts as this court has frequently held. State ex rel. Wehe v. Frazier, 47 N. D. 314, 182 N. W. 547. Hence, under such reasoning, where is there any authority under certiorari for this court to review an order of a district court summarily made requiring a sheriff to deliver certain property seized under a. Avar rant of attachment? State ex rel. Enderlin State Bank v. Rose, supra. Again, whence proceeds the authority for this court in a certiorari proceeding to review an abuse of discretion by a trial court? Murphy v. District 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; State v. Winchester, 19 N. D. 756, 122 N. W. 1111; Lowe v. District Ct. 48 N. D. 1, 181 N. W. 92. But Avith reference to these cases Avhere the supremo court used certiorari to aid it in the exercise of its poAvor of superintending control, the per curiam opinion disposes of the same by the mere statement that they have no application at all because the poAver so exercised is the constitutional poAver of superintending control.
What is the constitutional poAver of superintending control ? The Constitution provides that the supreme! court shall have a general superintending control over all inferior courts 'under such regulations and limitations as may he prescribed by law. N. D. Const. § 86. The *61statute provides that the supremo court, concerning its jurisdiction of superintending control, may issue such original and remedial writs as are necessary to the proper exercise of such jurisdiction. Comp. Laws 1913, § 7339. Further, that a writ of certiorari may be granted by the supreme court 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 a miscarriage of justice. Chap. 76, Laws 1919 amending § 8445, Comp. Laws 1913. Also, that the review upon the writ of certiorari cannot be extended further than to determine whether the inferior court, tribunal, board or officer has regularly pursued its authority. Comp. Laws 1913, § 8453. The supreme court has a threefold jurisdiction: (a) An appellate jurisdiction; (b) au original jurisdiction; and (c) a jurisdiction of superintending control. State ex rel. Moore, v. Archibald, 5 N. D. 359, 66 N. W. 234; State ex rel. Lemke v. District Ct. 49 N. D. 27, 186 N. W. 381, 385. This threefold jurisdiction comprehends the entire jurisdiction of the supreme court. It has an appellate jurisdiction only except as tlie constitution otherwise provides. N. D. Const. § 86. Its origiual jurisdiction is prescribed by the constitution. N. D. Const. § 87. State ex rel. Moore v. Archibald, supra. Its jurisdiction of superintending control is under such regulations and limitations as may bo prescribed by law. N. D. Const. ^ 86. The writ of certiorari, accordingly, whether issued or considered by the supreme court, must be considered by it either in the exercise of its original, appellate, or superintending jurisdiction. The supreme court may issue, as it has frequently issued, the writ of certiorari in the exercise of its original or superintending jurisdiction. If it issues a writ of certiorari in tbe exercise of its superintending control it must so issue the same under such regulations and limitations as the legislature has prescribed. N. D. Const. § 86.
The majority opinion asserts that certiorari eases under the power of superintending control have no application because it is the power of superintending control. Necessarily, the majority opinion must premise such a distinction in order to harmonize its decision with former decisions of this court. It quotes the statute, § 7339, Comp. Laws 1913, to the effect that the Supreme Oonrt in its superintending con*62trol over inferior courts may issue such original and remedial writs as are necessary to the proper exercise of such jurisdiction. It draws the conclusion 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 prescribe the functions of any writ which may be issued. In answering this conclusion it must first be noted that the statute quoted, § 7339, provides that the Supreme Court “hi Hie exercise of Us appellate jurisdiction and its superintending control over inferior courts, may issue such original and remedial writs as are necessary to the proper exercise of such jurisdiction.” In other words, the statute upon which the majority opinion bases a distinction is made applicable to the supreme court both in the exercise of its appellate jurisdiction and its power of superintending control. If the statute, § 8445, prescribing definitional limitations for the writ of certiorari apply to the appellate jurisdiction mentioned in § 7389, it applies also to the power of superintending control. Thus have the cases heretofore in this court consistently applied the statutory prescription concerning writs of certiorari whether the subject-matter concerned the exercise of an appellate jurisdiction or the power of superintending control.
In the first case of certiorari in this state under the power of superintending control, this court specifically stated that the writ was issued under its power of superintending control. It quoted the language of the statute that the writ may be granted “when there is no writ of error or appeal nor in the judgment of the court any other plain, speedy and adequate remedy.” The court obviated the objection made that there was another remedy available by holding that it was not speedy. It drew no distinction between the use of certiorari in the exercise of appellate jurisdiction and in the power of superintending control. State ex rel. Enderlin State Bank v. Rose, 4 N. D. 319, 332, 337, 26 L.R.A. 593, 58 N. W. 514. In State ex rel. Clyde v. Lauder, 11 N. D. 136, 90 N. W. 564, an original writ of certiorari was issued against a district judge. The court specifically quoted the statute to the effect that a writ of certiorari might be invoked where inferior courts or tribunals have exceeded their jurisdiction. In Schafer v. District Ct. 21 N. D. 476, 131 N. W. 240, an original application was made for a writ of certiorari against a distinct judge. The court quashed the temporary writ upon the ground that, pursuant to the statute, the applicant had *63another and more speedy remedy. In this case the court further notes that the subject-matter was already before the court upon appeal and another remedy was available to the petitioner. In Albrecht v. Zimmerly, 23 N. D. 337, 342, 343, 136 N. W. 240, an original application for a writ of certiorari against a district, court was made. The court quoted the statutory provision concerning the issuance of writs of certionu i. It held, “Petitioner’s right to the writ must be conferred by this statute.” Pursuant to the statute, the application was denied. In State ex rel. Noggle v. Crawford, 24 N. D. 8, 138 N. W. 2, an original application for certiorari was made to review an order of the district court. The court said that under the plain language of the statute a writ of certiorari may he granted only in case where such inferior courts, officers, boards, or tribunals have exceeded their jurisdiction. The writ was denied. To the samé effect see Squire v. County Ct. 25 N. D. 468, 141 N. W. 1135 where an original writ of certiorari was sought against a county judge. Likewise, State ex rel. Brunette v. Pollock, 35 N. D. 430, 160 N. W. 511.
Now in considering the “change of venue” cases, where original writs of certiorari were involved in the exercise of a superintending control and the question of an abuse of discretion was made determinativo concerning the issuance of the writ, it will he noted that in the very first case the question considered was whether the trial court exceeded his discretion, that is, his jurisdiction, thereby recognizing the application of the statute, Murphy v. District Ct. 14 N. D. 542, 105 N. W. 728, 9 Ann. Cas. 170. In the next case, the court said that “from the general tenor of the opinion in that former it. was hold that if the district court had exceeded its jurisdiction or authority and abused its discretion by transferring the trial of a caso to a too remote county, the abuse of discretion or excess of jurisdiction might be reviewed by certiorari. The members of this court who were not tlien members of the court do not wish to be considered as indorsing the doctrine that a writ of certiorari is a proper remedy in such a case. In this case no question is raised as to the propriety of the writ.” Zinn v. District Ct. 17 N. D. 135, 140, 114 N. W. 472. In the next case, State v. Winchester, 19 N. D. 756, 122 N. W. 1111, an original writ of certiorari was again entertained concerning change of venue granted by a trial court and denied because no abuse of discretion was shown. In *64the last case, Lowe v. District Ct. 48 N. D. 1, 181 N. W. 92, an original writ of certiorari was again involved as in the three cases above named. The court, through the majority opinion, found an abuse of discretion. Two members of the court, who then dissented and who now are signers of the majority opinion herein involved dissented not upon the ground that certiorari was not the appropriate remedy but upon the ground that no abuse of discretion was shown. Specifically, Mr. Justice Christianson, in his dissent emphasized the constitutional provision that the power of superintending- control is subject to the condition that it is to be exercised under such regulations and limitations as may be prescribed by law. N. D. Const. § 86.
Now, the constitution specifically grants to the supreme court the power to issue writs of certiorari. Necessarily, it must issue these writs in the exercise of its original, superintending, or appellate jurisdiction. The question of its use in the exercise of an original jurisdiction proper is not herein concerned. When used for the purpose of exercising superintending control it is subject to the statutory provisions hereinbefore discussed. -Otherwise, it may be used only in the exercise of an appellate jurisdiction. In the cases cited as illustrative of instances of superintending control, the writ of certiorari used was an original writ, not as ancillary to an appeal or writ of error. In fact; the majority opinion is founded upon the conception that the writ of certiorari in this state is statutory, sui generis, and unlike certiorari at the common law. Hence, the discussion that has preceded is to demonstrate that the eases cited involved the exercise of a superintending control through original writs of certiorari which were subject to and dependent upon the statutory prescription. If the statutory definition of certiorari does not circumscribe the use of the writ in the original exercise of an appellate or superintending jurisdiction, then the reasoning of the majority opinion which relies upon the statute alone must fall; for district courts as well as the supreme court may issue writs of certiorari and the district court did issue a writ of certiorari in the case at bar from which the appeal herein has been taken.
Accordingly, we are concerned with the statutory remedy of certiorari and its application. The majority opinion has given a very limited field of operation to the term “excess of jurisdiction.”
In accordance with the statute and pursuant to the constitutional *65powers and statutory rights of the courts in certiorari proceedings, the term "excess of jurisdiction” necessarily must be considered.
This court has frequently stated that the writ will only lie where want or excess of jurisdiction appears. Albrecht v. Zimmerly, 23 N. D. 337, 343, 136 N. W. 240; State ex rel. Noggle v. Crawford, 24 N. D. 8, 11, 138 N. W. 2; State ex rel. Wehe v. Frazier, 47 N. D. 314, 182 N. W. 545. Thus, the statute prescribes. Comp. Laws 1913, § 8445; Laws 1919, chap. 76. This statute has existed since territorial days. The Constitution grants to the supreme and district courts original jurisdiction to issue writs of certiorari. N. D. Const. §§ 87, 103.
It has been said that excess of jurisdiction is difficult, oven impossible to define. 11 C. L. 103.
Section 8453, Comp. Laws 1913 provides that in a certiorari proceeding the review can not be extended further than to determine whether the inferior court, tribunal, board, or. officer has regularly pursued its authority. This court has held that our statute concerning certiorari is sui generis; that our statutory certiorari is not only unlike the common law but equally is unlike the law of any other state; that its office is not confined to a review of judicial or quasi-judicial proceedings but extends to every case where, in the language of the statute, inferior courts, tribunals, etc., have exceeded their jurisdiction; that, in view of the express language of the statute, the supreme and 'district courts have power to examine the acts of such tribunals as are exercising administrative, legislative, judicial and other functions, for the sole purpose of ascertaining whether they have proceeded according to law. State ex rel. Johnson v. Clark, 21 N. D. 517, 528, 131 N. W. 715.
In the recent case of State ex rel. Mayo v. Thursby-Butte Special School Dist. 45 N. D. 555, 178 N. W. 788, this court said that the last cited case establishes a broad ground for the; remedy of certiorari but that the court is not disposed in any manner to qualify the holding on this point for it manifestly follows from the language of the statute. It is not necessary to advert to the scope of certiorari at the common law. 40 Am. St. Rep. 29, note. It is sufficient to state that it was and is an extraordinary remedy to supply defects in the administration of justice and to prevent injustice. 11 C. J. 8. In some respects our statutory certiorari is more extensive than that known at the common *66law. It may he issued to an officer whose term of office has expired. Comp. Laws 1913, § 8449. It is not limited to judicial or quasi-judicial proceedings.
Although our statutory certiorari is peculiar, nevertheless, reference may be and has been made to the common law to better comprehend its purposes and scope. See Re Evingson, 2 N. D. 184, 193, 33 Am. St. Rep. 768, 49 N. W. 733.
The majority opinions have referred to, and quoted from, decisions in California by reason of the similarity of the statutory provisions concerning certiorari. In the McClatchy Case, 119 Cal. 413, 39 L.R.A. 691, 51 Pac. 696, from which an extensive quotation is made in the per curiam opinion, the court said, as quoted in the per curiam opinion “any departure from those recognized and established requirements of law, however close the apparent adherence to mere form the method of procedure is, 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! ” Pray, in substance, wherein is the difference between the refusal to hear facts and the refusal to accept facts? In the later case of Younger v. Superior Ct. 136 Cal. 682, 687, 69 Pac. 485, quoted in the per curiam opinion, a certiorari proceeding was involved. The appellate court repeated the language hereinbefore quoted concerning excess of jurisdiction. It annulled the order. The per curiam opinion further quotes Schwarz v. Superior Ct. 111 Cal. 106, 112, 43 Pac. 580, where a certiorari proceeding was again involved. The quotation contained in this per ‘curiam opinion is requoted herein:
“The objection that we are not at liberty to go beyond the recitals or [hidings 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 hv which the power of the court in the premises can he, ‘inquired into; and for this purpose the review extends, not only to the *67whole of the record of the court below, but even to the evidence itself, whore necessary to determine the jurisdictional fact.”
Pursuant to the reasoning of the majority opinion these cases are only authority in a certiorari proceeding where the mere question of power is concerned. Put isn’t it a question of power upon the record in this case % Must it be held that this question of power can not be investigated where a city commission has ordered a territory to be detached which, upon the conceded facts and in accordance with the statute, may not be detached ? And vice versa, has a city commission power to deny a detachment when, pursuant to the conceded facts, the statute states that it is its mandatory duty so to do?
But, it is asserted in this per curiam opinion that the statute does not require the city commission to preserve the evidence adduced upon the hearing, however, in this case all of the evidence is here. It has been preserved. Another statute requires, in a certiorari •proceeding, that the inferior court or tribunal, certify fully a transcript of the record and proceedings had. Comp. Laws 1913, § 8448.
Again, it is said that the appellant, who was the petitioner before the city commission, presented his application to the commission. He was accorded a hearing and no complaint was made of any act of the commission until it made its decision on the merits. Surely, what else could the petitioner have done ? It was his duty to make such presentation, pursuant to the statute, and it was also the duty of the commission to proceed as the statute prescribes. Again, they say that the petitioner submitted to the jurisdiction of the city commission. Truly, what may he said of this argument when it is seen that the commission in the trial court submitted this matter to the jurisdiction of the trial court without questioning in any manner the procedure.
In a note to 40 Am. St. Rep. 35, it is said: “It is a fair summary' of the decisions to say that in those states in which the evidence may he brought before the superior court upon certiorari that court may examine it, not for the purpose of determining the credibility of witnesses or the weight to be given conflicting testimony, but solely for the purpose' of determining whether, from competent evidence before it, the-decision of the inferior court is sustainable, and, if so, such decision cannot he set aside as against, or not supported by, the evidence, and, *68on tlie other hand, if there was no competent evidence to sustain such decision it must be annulled.”
In 11 C. J. 105, it is stated:
“The writ will not lie to review errors or mistakes in matters of discretion, where the court has acted within its discretion and where there has been no disregard by the court of the procedure prescribed by law; but if the record show nonconformity to' legal requirements, the ‘writ will not be refused on this ground. However, it has been held in some jurisdictions that, if the discretion has been abused it can be reviewed on certiorari.”
In the light of these considerations it is proper to consider the action that this court has taken in certain cases.
In Murphy v. District Ct. 14 N. D. 542, 105 N. W. 728, 9 Ann. Cas. 170, certiorari proceedings were had in this court to review an order of th£ district court granting a change of venue in a criminal case. The question presented was whether the presiding judge exceeded his discretion in sending the case to a particular county. The majority of the court considered and found that the trial court did not abuse its discretion. Judge Engerud, in a dissenting opinion, found that the court did abuse its discretion and stated that the proceeding was one which directly challenged the propriety of the order for a change of venue on the ground that the district judge arbitrarily and without any reasonable cause sent the case to Cass county.
In Zinn v. District Ct. 17 N. D. 135, 114 N. W. 472, certiorari proceedings again were initiated in this court concerning an order of the district court granting a change of venue. The sole question presented was whether the district court acted within its discretion in transferring the trial of the action to a certain county. This court found that there was no abuse of discretion. In this case no question was raised concerning the propriety of the writ. The court did not approve of the doctrine that a writ of certiorari was a proper remedy, nevertheless, by reason of no question being raised it did determine that there was no abuse of discretion.
In State v. Winchester, 19 N. D. 756, 122 N. W. 1111, certiorari proceedings were initiated in this court involving an order of the trial •court granting a change of venue. This court held that the granting of such application for a change of venue was a matter within the sound *69discretion of the trial court and that its rulings would not be disturbed except for an abuse of discretion. In this proceeding the court found that there was no abuse of discretion.
In Squire v. County Ct. 25 N. D. 468, 141 N. W. 1135, an application for a writ of certiorari, to review the action of a county court in granting a change of venue, was denied because the plaintiff had an adequate remedy by appeal.
In Lowe v. District Ct. 48 N. D. 1, 181 N. W. 92, certiorari proceedings again were had to review an order of the district court granting a change of venue to a certain county. The question of the trial judge’s discretion was again considered. A place of trial designated by the trial court was ordered changed. Neither the majority opinion nor the dissenting opinions questioned the propriety of the remedy.
In State ex rel. Wehe v. Frazier, 47 N. D. 314, 182 N. W. 545, certiorari issued because the governor did not accord to the petitioner, upon review of the record, a right to be heard.
In Schwahn v. District Ct. 36 N. D. 6, 161 N. W. 556, a writ of certiorari was issued to a district judge and clerk for the reason that the trial judge had irregularly and in excess of his jurisdiction ordered money in the possession of a defendant in a criminal action to be turned over to the clerk.
These cases are illustrative of certiorari proceedings where this court has entertained jurisdiction, either originally or upon appeal, and has considered the merits for purposes of ascertaining whether the lower tribunal, board or officer has regularly proceeded accoiding to law.
May it be doubted that in some of these cases, abuse of discretion has been considered a failure to regularly proceed according to law and therefore an excess of jurisdiction? May it be doubted that this court has considered arbitrary action by a tribunal, board or officer, whetheraeting in a judicial, quasi-judicial, legislative or executive capacity, to be a failure to regularly proceed according to law and therefore an excess of jurisdiction?
In the case at bar there was no right of appeal from the decision of the City Commission: It is not suggested that any other remedy is available. Mr. Justice Christianson, in a dissenting opinion in Cofman v. Ousterhous, 40 N. D. 390, 412, 18 A.L.R. 219, 168 N. W. 826, has quoted with approval the following: “It is a general rule of the *70■common law that when a new jurisdiction is created by statute and the court or officer exercising it proceeds in a summary way or in a course not according to the common law, and a remedy for the revision of its exercise is not given by the statute creating it, certiorari will lie. 4 Enc. Pl. & Pr. 73.
Want of jurisdiction must be distinguished from excess of jurisdiction. 11 C. J. 103. This court has pointed out a path of distinction, in certiorari proceedings. It has recognized that the statute in its prescription has connected the phrase “excess of jurisdiction” with a failure to proceed regularly according to law. Comp. Laws 1913, §§ 8445, ■S453. In other words, although there may be no want of jurisdiction in a certiorari proceeding, yet, acts in excess of jurisdiction not consonant with law may appear in the course thereof.
In the instant case the law requires the city commission, upon a certain petition and upon certain facts in support thereof at a hearing, to detach territory of a certain character. No discretion is granted to the commission when the requisite facts are presented. A mandatory duty is imposed upon the commission to detach the territory, not pursuant to their findings but pursuant to the requisite facts. The ends, neither of justice nor of consistency, are promoted by the holding in the majority opinions. These opinions base their holding entirely upon a procedural question' first raised in this court, manifestly, contrary to the holdings in the Brissman Cases and in Mogaard v. Garrison and contrary to usual rules of practise. The writ of certiorari is given a refined and technical application. No attention is paid to the amendment of § 8445, Comp. Laws 1913, enacted in 1919, which provides in addition that a writ of certiorari may bo granted when, in the judgment of the court, it is deemed necessary to prevent a miscarriage of justice. Accordingly, upon the facts in this case, I am of the opinion that it is the duty of this court to investigate the facts and to decide the questions involved upon the merits the same as the trial court did.