State ex rel. Claver v. Broute

Johnson, J.

This is an appeal from an order of the district court of Grand Porks county, which granted the prayer of the plaintiff petitioner, directing and commanding the city council of the city of Reynolds to grant the petition of Charles N. Ola ver “for the disconnection and exclusion of said land from the city limits,” and which commanded the city council of the city of Reynolds “to enact an ordinance disconnecting said lands from within the city limits.”

Proceedings in the trial court were upon certiorari. The appellants, on the oral argument, strenuously contend that certiorari does not lie, and relv on the case of Baker v. Lenhart, ante, 30, 195 N. W. 16.

The petititoner, Charles N. Claver, with other members of his family, petitioned the city council of Reynolds, North Dakota, that certain described territory be excluded from the city. It is alleged in the petition that the lands wore “wholly unplatted, and no municipal sewers, water mains, pavements, sidewalks or other improvements have been made or constructed therein, and the said lands have been, and are, used solely for farming purposes only.” It is further alleged that the petitioner, Charles N. (haver, is the sole owner of this land and that the other petitioners, four in number, “are the only legal voters residing upon said land.” The petitioners brought themselves within the terms of chapter 32, N. D. Session Laws, for the year 1921. The council refused to enact an ordinance detaching the territory and thereupon the petitioner Olaver made application to the district court of the First judicial district for a writ of certiorari, which was granted. An answer and return was made. The court made its findings and entered its order as heretofore set forth, commanding the council to enact an ordinance in accordance with the prayer of the petition, disconnecting the territory described.

. An examination of § 3909, Comp. Laws 1913, which was amended by chapter 79 of the Session Laws of 1919 and again by chapter 32, Session Laws 1921, discloses the fact that when it is made to appear to the council, by a petition asking that certain described territory be detached from the city is wholly unplatted and no municipal sowers, water mains, pavements, sidewalks or other city, town or village improvements Have been made or constructed therein, it is the duty of the city council to disconnect and exclude such territory. It is not disputed in this case that no such improvements existed upon this territory sought to be detached liy the appellants, and the council, notwithstanding these facts, refused to pass an ordinance detaching the territory.

Til view of the objection made by the appellant to the propriety of the remedy and jurisdiction of the trial court to issue a writ of certiorari in this case, we find it unnecessary to examine the numerous constitutional objections urged by appellant against the validity of chapter 32 of the Session Laws of 1921. In the recent case of Baker v. Lenhart, ante, 30, 195 N. W. 16, the majority of this court held that the proceedings of the city commission of the city of Bismarck, acting upon a petition for the detaching of territory under facts substantially tlio same as in the case at bar, and pursuant to chapter 32, Session Laws 1921, could not he reviewed by certiorari; that under our law “a writ of certiorari may be granted by the supreme court and district, 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 miscarriage of justice:” § 8445, Comp. Laws 1913, as amended by chapter 16, Session Laws 1919; that “jurisdiction relates to the power of the tribunal, and not to the rights of the parties;” and that “'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.”

If the statute be construed to vest in the landowner, at his pleasure, the power to withdraw territory from and thereby to change the boundaries of a municipal corporation, and that the city council or the city commission have only a ministerial duty to perform in that regard, it seems difficult to sustain the act against the charge that it is an attempt to delegate legislative power in contravention of the constitution and in violation of the rule laid down in Morton v. Holes, 17 N. D. 154, 115 N. W. 256.

The judgment of the trial court is reversed and the writ dismissed.

Nt'Essnu and TLrdzelu, IL, concur.