Call v. Town of Afton

• Decision Date: 08 July 1950
• Parties: Charles S. CALL and Robert W. Hastings et al., Complainants, v. TOWN OF AFTON, Defendant. In the Matter of the Appeal of the Town of Afton, a Municipal Corporation, from an Order of the Public Service Commission of the State of Wyoming, dated
• Court: Wyoming Supreme Court

Page 270

278 P.2d 270

73 Wyo. 271

Charles S. CALL and Robert W. Hastings et al., Complainants, v. TOWN OF AFTON, Defendant In the Matter of the Appeal of the Town of Afton, a Municipal Corporation, from an Order of the Public Service Commission of the State of Wyoming, dated July 8, 1950.

No. 2675.

Supreme Court of Wyoming.

Dec. 28, 1954.

Teno Roncalio, Cheyenne, for complainants.

George F. Guy, Ellen Crowley, Cheyenne, for defendant.

BLUME, Chief Justice.

We have before us a petition for a writ of certiorari filed in this court on August 26, 1954. The petition alleges the following facts.

The petitioners are Charles S. Call and Robert W. Hastings whose property is located outside the limits of Afton. On December 5, 1949, they presented a petition to the Public Service Commission of this state alleging that the town of Afton refused to provide them with water service for domestic use, the town thereby discriminating against them. The town of Afton answered in that proceeding and admitted that it was a municipality and owned a water system and that it supplied some sixty parties living outside the territorial limits of Afton with water, but only under a special permit. On July 8, 1950, a hearing was had before the Public Service Commission which found that the town had enough water to supply four times the number of people living in the town; that the town had supplied some sixty people living outside the town of Afton with water; that it was not authorized to discriminate against any person and that such discrimination against Call and others was unlawful. An appeal was taken by the town from the decision of the Public Service Commission. The district court of Laramie county found in its judgment of May 17, 1951, that the order of the commission was contrary to law and not supported by sufficient evidence. Petitioners thereupon undertook to take an appeal from such judgment of the district court to this court. While the appeal to this court was being taken, and on August 8, 1951, the town council of Afton had a meeting, with the petitioners present, and the members of the council then agreed orally that if the petitioners 'would withdraw their notice of appeal and stop the litigation and expense, the said town council would arrange to provide for the annexation' of the property of the petitioners to the town and 'thus provide them with water service the same as other citizens of the town.' In reliance on this promise, the petitioners stopped their appeal which was being taken from the district court's judgment to this court, so that the appeal was never perfected and was never filed in this court. Proceedings for annexation as aforesaid were undertaken by the town council of Afton, but were not perfected owing to objections filed thereto by inhabitants of Afton and the town council of Afton still refuses to make such annexation.

Thereafter, on November 19, 1953, the petitioners filed another application with the Public Service Commission for the relief originally asked, setting up new matters. But that Commission, on March 18, 1954, held the judgment of the district court of Laramie county was res judicata and so refused any relief.

The prayer of the petitioners herein is as follows:

'Wherefore, Applicants pray that this Honorable Supreme Court issue an Order directed to the proper Officer of the District Court of the First Judicial District of the State of Wyoming in and for Laramie County, certifying for review to the Supreme Court of Wyoming the Record on Appeal in the case of 'In the Matter of the Appeal of the Town of Afton, A Municipal Corporation, From an Order of the Public Service Commission of the State of Wyoming dated July 8, 1950. In the District Court of the First Judicial District as Docket 36 No. 120.', and the Applicants be permitted 60 days following the filing of said record in the Supreme Court to perfect an abstract of said record and file their brief in this Court.'

The town of Afton, making a voluntary appearance herein, filed a motion to dismiss the petition on the ground that this court has no jurisdiction and also filed an answer, with affidavits attached, modifying or contradicting the allegations of the petition and the affidavits attached thereto. It is not necessary herein to resolve conflicting facts herein as shown by the various affidavits and for the purpose of this case, we may regard the facts alleged in the petition as true. The case was argued orally. The parties were given time to file additional briefs. These briefs have now been filed and the case is now ready for final disposition.

It is said in 4 C.J.S., Appeal and Error, § 1133, p. 1609: 'The office of a certiorari is to require the clerk of the court from which an appeal is taken to send up the record in the case appealed, or, in case the record already sent up is defective, to send up a more complete record, in order that the proceedings in the trial court may be reviewed.' In 14 C.J.S., Certiorari, § 3, p. 124, it is said: 'At common law the writ of certiorari is used for two purposes: (1) As an appellate proceeding for the reexamination of some action of an inferior tribunal. (2) As an auxiliary process to enable the court to obtain further information with respect to some matter already before it for adjudication.' It is somewhat difficult to determine how counsel for the petitioners regards his petition--whether auxiliary to the appeal heretofore begun to be taken, or as a direct appellate proceeding. The prayer of the petition herein is not sufficiently definite on the point. Petitioners apparently want us to review the judgment of the trial court as on an appeal therefrom. The petition herein, however, can hardly be called auxiliary since there is nothing yet before the court to which it can be so. And there is no precedent for so regarding it. So the petition herein must be considered as an appellate proceeding, distinct from the appellate proceedings prescribed by our statutes. We have two statutory methods of reviewing judgments of the district court, one by proceeding in error and one by direct appeal. Counsel for petitioners asks us to disregard them despite the ordinary rule that the writ of certiorari will not ordinarily issue in those cases in which there is a plain, speedy and adequate remedy by appeal. 14 C.J.S., Certiorari, § 39, p. 185, 10 Am.Jur. 531, § 7.

Wyoming Compiled Statutes 1945, § 3-5323, provides that the writ of certiorari is abolished. However Article 5, section 3 of our constitution states that this court has the right to issue such writ. Perhaps neither the constitution nor the statutes should be entirely disregarded. Effect perhaps may be given to each by keeping the provisions of the constitution within its proper limits. We held in effect in City of Sheridan v. Cadle, 24 Wyo. 293, 157 P. 892, that a writ of certiorari might issue in some cases in which an inferior tribunal has no jurisdiction or acts in excess of jurisdiction. See also State ex rel. Loomis v. Dahlem, 37 Wyo. 498, 263 P. 708. And such writ would seem ordinarily not to be improper in cases in which no appeal has been provided from proceedings before a judicial as quasi judicial tribunal, at least in cases in which such tribunal had no jurisdiction or acted in excess of jurisdiction. 10 Am.Jur. 527, § 5, see annotation in 174 A.L.R. 194. Whether or not we should go beyond cases of that kind in face of the statute above mentioned is another question.

Bailey on Jurisdiction, volume 2, page 562, speaking of certiorari states that great care must be taken to distinguish those cases where the writ brings up the records or proceedings of courts, and where it issues to some body or inferior tribunal exercising judicial power, and that in most jurisdictions when the common-law writ issues and is directed to a court, it only brings up for review jurisdictional questions.

The effect of a constitutional provision like ours was discussed to some extent in City of Sheridan v. Cadle, supra, but not decided. The opinion refers to decisions of the Supreme Court of Oklahoma under a constitutional provision like ours. Wisconsin, too, appears to have a constitutional provision like ours, and the court held in Wardsworth v. Sibley, 38 Wis. 484, 486, that: 'The constitution refers to the writ as it was used and applied in practice when the constitution was adopted, and did not intend to give it a scope or object different from its original and appropriate function. * * * But we think it would be contrary to all practice and all precedent to make it a substitute for a writ of error or appeal, to bring up for review the final judgments of courts of record proceeding according to the course of the common law.' The court also stated: 'The general rule as laid down in the books is, that a common law certiorari will not issue where a party has another adequate remedy; and it is certainly a novel application of such a writ to make it perform the office of a writ of error to bring up for review a final judgment of a court of record.' It seems that the state of Massachusetts has a statute similar to our constitutional provision above mentioned. Inhabitants of Mendon v. County Commissioners of Worcester, 2 Allen, Mass., 463. In Re Cooke, 15 Pick. Mass., 234, 237, the court discussed the common-law rules relating to certiorari. The court stated in part: 'The question is, what is the legal and proper remedy or process, for the purpose of correcting any error in the proceedings, after final judgment rendered, or the final decision of the cause; and it seems to be well settled, by the English authorities, that after final judgment in a court of record, proceeding according to the course of the common law, the only remedy is by writ of error. But where the court below is not a court of record, or does not proceed according to the course of the common law, no writ of error will lie, and the proper remedy is by...