Adleman v. Pierce
| Decision Date | 08 December 1898 |
| Citation | 55 P. 658,6 Idaho 294 |
| Parties | ADLEMAN v. PIERCE, MAYOR |
| Court | Idaho Supreme Court |
CONTRACT BY CITY COUNCIL-ADMINISTRATIVE ACT.-The letting of a contract to do public work by a city council is an administrative, and not a judicial or quasi judicial, act.
CERTIORARI-JURISDICTION.-Certiorari denominated writ of review by the Idaho code, will not lie to review the action of a city council in letting a contract to pave a street.
(Syllabus by the court.)
APPEAL from District Court, Ada County.
Judgment affirmed, with costs of appeal to the respondents.
Hawley & Puckett and John T. Morgan, for Appellant.
The writ of certiorari or writ of review is the proper remedy. (See Orr v. Board of Equalization, 3 Idaho 190, 28 P. 416; Dunn v. Sharp, 4 Idaho 98, 35 P. 842; Maxwell v. Board of Supervisors, 53 Cal. 391.) The making of the contract between the city and the said Thomas K. Muir & Co. is not, and was not, authorized by any law relating thereto, and is in excess of its authority. The following cases are cited to show that the common-law writ of certiorari is the proper remedy for illegal or invalid proceedings of a municipal corporation: 4 Ency. of Pl. & Pr 113 et seq.; Mace v. Newberg, 15 How. Pr. 162; Banton v. Brooklyn, 7 How. Pr. 198; Thatcher v Dusenbury, 9 How. Pr. 32; Maores v. Smedley, 6 Johns. Ch. 26; Scribner v. Allen, 12 Minn. 148. A citizen owner and tax-payer in a city may sue out the writ to review the validity of the ordinance authorizing public improvements, and he need not wait until the expenditures have been made and the assessment has been actually levied upon his property. (State v. Patterson, 34 N.J. L. 12.) When a review is sought of the proceedings touching municipal improvements, the writ must be directed to the municipal corporation, or to the board or officers who have control of the record, according to the circumstances of the particular case. The joinder of persons whose rights and interests are separate and distinct is improper, although they aim to a common result, and to save expense, unite in the prosecution of the writ. (4 Ency. of Pl. & Pr. 174; Morris Canal Co. v. State, 14 N.J.L. 411; Libbey v. West St. Paul, 14 Minn. 248; Champion v. Minnehaha Co., 5 Dak. 416, 4 N.W. 739.)
Kingsbury & Parsons, W. E. Borah and C. C. Cavanah, for Respondents.
The making of a contract has none of the elements of judicial action. (Quinchard v. Board of Trustees of Alameda, 113 Cal. 664, 45 P. 85.) The function exercised by a municipal corporation may be legislative, administrative or judicial, but only acts done by it when exercising judicial functions can be reviewed under this procedure. This writ does not lie under our laws to review the action of any tribunal, board or officer in the exercise of functions which are legislative in their character. (People v. Oakland Board of Education, 55 Cal. 375.) Whether an existing street shall be improved is a question to be trusted to the governing body of a municipality in its legislative capacity, and its determination of that question, as well as upon the character of the improvement to be made, is a legislative act. (Dillon on Municipal Corporations, secs. 94, 929; Crayton v. Manson, 27 Cal. 613; De Witt v. Duncan, 46 Cal. 343; Bolton v. Gilleran, 105 Cal. 244, 45 Am. St. Rep. 33, 38 P. 881; 1 Beach on Public Corporations, sec. 543; People ex rel. Trustees Village of Jamaica v. Board of Supervisors of Queens County, 131 N.Y. 468, 30 N.E. 488.) When the action of a public officer or of a public body is merely legislative, executive, or administrative, although it may involve the exercise of discretion, it cannot be reviewed by certiorari, and so it has been so often held that the rule has become elementary. (People v. Mayor, 2 Hill, 9; In re Mt. Morris Square, 2 Hill, 14; People v. Board of Health, 33 Barb. 344; People v. Supervisors of Livingston County, 43 Barb. 232; affirmed, 34 N.Y. 516; People v. Walter, 68 N.Y. 403; People v. Jones, 112 N.Y. 597, 20 N.E. 577; Spring Valley Water Co. v. Bryant, 52 Cal. 232.)
The common council of Boise City passed, on May 8, 1897, an ordinance requiring the grading, curbing, and paving of Main street from the west curb line of Fifth street to the west line of Tenth street, in said city, and providing that part of the cost thereof should be charged to the abutting landowners. After advertising for bids as required by said ordinance, the council accepted, May 17, 1897, the bid of Thomas K. Muir & Co., and let a contract for the work to said firm. The appellant (one of the abutting owners upon the portion of said street to be paved under said contract) filed on May 24, 1897, in the court below, his petition for a writ of review, for the purpose of reviewing the action of said city council in letting the said contract. An alternative writ was issued, to which return was made by respondents, who moved to quash the writ on divers grounds, one of which was "that the petition for the writ does not state facts sufficient to constitute a cause of action," and another being that the writ would not lie to review the action of the common council complained of, such action being administrative, and not judicial. The theory of the plaintiff seems to be that that certain act of the legislature amending the charter of Boise City, approved February 9, 1897 (Sess. Laws 1897, p. 226), is void, first, because it is special legislation, and therefore repugnant to the constitution of Idaho; and, second, for the reason that said act was not passed in the manner required by section 15, article 3, of the constitution; that, said act being void, the said ordinance was unauthorized and void. From these premises plaintiff concludes that the action of the common council in letting said contract was void, and in letting said contract the council exceeded its jurisdiction.
The question that confronts us at the outset is one of jurisdiction. Can the courts of this state review the action of a city council in letting a...
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Weiser National Bank v. Washington County
... ... of the statute, and that the question of constitutionality of ... the statute cannot be reviewed on certiorari. (Adleman v ... Pierce, 6 Idaho 294, 55 P. 658; Wright v ... Kelley, 4 Idaho 624, 43 P. 565; McConnell v. State ... Board of Equalization, 11 Idaho 652, ... ...
- In Re: On Rehearing