I am unable to agree with the rule announced in the majority opinion and respectfully dissent.
Certiorari is a special action and is, in this state, entirely statutory. By Rule 306 courts are granted the right or power to entertain certiorari only where specifically authorized by statute (which is not claimed here), or where an inferior tribunal, board or officer, exercising judicial functions, is alleged to have exceeded its jurisdiction or otherwise acted illegally. If there is not an exercise of a judicial function, then, under the plain wording of the statute, certiorari does not lie irrespective of any exceeding of jurisdiction or other illegality. See Lehigh Sewer Pipe Tile Co. v. Incorporated Town, 156 Iowa 386, 397, 136 N.W. 934; Rehmann v. City of Des Moines, 204 Iowa 798, 215 N.W. 957, 55 A.L.R. 430.
Whether any specific action is in the exercise of a judicial *Page 538 function is often difficult to determine, and the authorities are of little assistance. In 14 C.J.S., Certiorari, section 17b, it is said:
"The mere exercise of judgment or discretion is not the criterion by which a proceeding must be viewed to determine whether or not it is judicial in this connection," also "It is clear, for example, that it is the nature of the act to be performed, rather than of the office, board, or body which performs it, that determines whether or not it is the discharge of a judicial or a quasi-judicial function."
In 10 Am. Jur., Certiorari, section 10, is the following statement:
"A function is not judicial merely because it requires discretion, deliberation, thought, and judgement. Rather, a judicial function is performed by the exercise of discretion and judgment within that subdivision of the sovereign power which belongs to the judiciary, or, at least, which does not belong to the legislative or executive department of the government."
The action here complained of is the appointment of a chief of police and a regulation of his duties and responsibilities. In my judgment this is not a judicial or quasi-judicial function under any possible theory, and hence it follows that the trial court was without jurisdiction to maintain the instant case. The existence of a judicial function being essential for jurisdiction, section 611.7 et seq. urged by appellee is not applicable. See McLachlan v. Incorporated Town, 105 Iowa 259, 74 N.W. 773; Johnson v. Home Mut. Ins. Assn., 191 Iowa 535, 181 N.W. 244; In re Estate of Heaver, 168 Iowa 563, 150 N.W. 698.
The majority opinion holds that as to part of Roll Call 2983, it constitutes the exercise of a quasi-judicial function and hence certiorari lies. Assuming this to be true, the opinion goes far beyond this. It says:
"Unless certiorari lies, it is doubtful at best if any remedy was open to plaintiff by which to test the legality of this resolution. We are reluctant to hold a litigant is without any remedy." *Page 539
In my judgment, this in effect nullifies the provision of Rule 306 to the effect that only when in the exercise of a judicialfunction will certiorari lie. It would allow certiorari in any case where no other remedy exists without regard to the nature of the act under examination.
I would reverse the trial court and remand with direction to annul the writ.
MANTZ, J., joins in this dissent.