Faribault v. Hulett
| Decision Date | 01 January 1865 |
| Citation | 10 Minn. 15 |
| Parties | ALEXANDER FARIBAULT et al. vs. LUKE HULETT et al. |
| Court | Minnesota Supreme Court |
1. An appeal does not lie from the order sought to be reversed. 11 N. Y. 276; 17 Pick. 58. Nor a writ of error. 10 Wend. 350; 13 Cow. 110; 3 Cush. 11.
2. A mandamus to compel the court to proceed with the assessment will not lie, because none but ministerial acts can be reviewed in that manner. 18 Wend. 97; 20 Wend. 638.
3. Certiorari lies upon all final adjudications of an inferior court or officer invested by the legislature with power to decide upon the property or rights of the citizen, and which court or officer acts in a summary way or in a new course different from the common law, and upon a return to such writ a jurisdictional question or questions which relate to the regularity of the proceedings or questions of law which arise upon the face of the records, or of the proceedings or orders which are of the nature of records, may be examined. 25 Wend. 167-169; 6 How. Pr. R. 25; 15 Pick. 234; 11 Mass. 464; 6 Mass. 397; 17 Pick. 58; 13 Ill. 660.
4. Should it be objected that the district courts of this state are not inferior courts, but courts of general common law jurisdiction, we answer, that it is admitted that these courts are not, while exercising their general common law powers, inferior courts, but it is equally certain that while exercising a special statutory jurisdiction they are inferior tribunals, and subject to supervision of the supreme court as such. 17 Barb. 232; id. 506; 7 Hill, 9; Mass. Rev. Stat. (1836) p. 508; 8 Pick. 194; 7 Met. 605; 17 Pick. 58; 8 Wend. 47. The rule is accurately stated as follows: When any error has occurred in the proceedings of the court below, while proceeding differently from the course of the common law, in any stage of the cause, either in civil or criminal cases, the writ of certiorari is the only remedy to correct such error, unless some other statutory remedy has been given. 1 Bouvier Law Dict. Title, Certiorari; 8 Pick. 227.
5. The statute prescribes what the petition shall contain and has been strictly followed. §§ 1, 2, and 3, ch. 127, p. 847, Comp. Stat.
6. It could not be necessary to negative in the petition the existence of a water power previously improved. That this was a matter of defense to be shown before the commissioners, is apparent from the fact that the liability to injury of such power could only be ascertained by an examination and the taking of levels and measurements, and would be first discovered by the inquiry of the commissioners under their appointment.
7. It is a fundamental rule, applicable alike to pleadings and criminal actions, and to special proceedings like the present, that if there be an exception in the enacting clause the party pleading must show that his adversary is not within the exception; but if there be an exception in a subsequent clause, that is matter of defense, and is to be shown by the other party. 11 Cush. 130; id. 178; Gould Pl. ch. 4, §§ 20-1-2; 12 Barb. 347; 2 Hill, 443; 6 Barb. 607; 20 Wend. 360.
8. It may be claimed that it should appear on the face of the petition that the respondents' lands were not "damaged by consent." The fact of applying for commissioners, is as conclusive evidence of want of consent as any language could afford. 1 Conn. 279; 19 Conn. 519; 10 Conn. 306; 7 Cow. 353.
Points and authorities for respondents: —
1. The writ of certiorari can be allowed only upon its being made to appear by the affidavits presented by the applicants and respondents, that error was committed by the court below in making the order complained of. 1 Monell Pr. 267 and 268.
2. The act being a special statute in derogation of the common law, the applicant must bring himself strictly and fully within its provisions, or the court will not acquire jurisdiction. He must not only make affirmative averments of all the circumstances necessary to bring the matters within the statute, but if there be exceptions in the act which confers the right, he must show negatively that the matters are not within the exceptions.
3. The petition of the applicants is substantially and utterly defective, and confers no jurisdiction or authority upon the judge to make the order appointing the commissioners, because — First, it does not set forth that the granting of the right applied for would not operate "to the injury of a water power previously improved." Second, it does not set forth the granting of the right would not "impair the right of any person to erect and maintain a dam under the laws heretofore and now existing." Third, it does not state that the real estate sought to be overflowed and damaged, is not owned by them (the petitioners), nor "damaged by consent." The allegation of all these facts in the petition is indispensable to the granting of the application, and the making of the order to appoint commissioners. Act Comp. Stat. 847, §§ 1, 16, 25. The petition does not follow either of these sections.
4. All the facts which are alleged in the petition may be true, and yet the applicants not entitled to the privilege of erecting a mill-dam under this act.
5. Section 2 of said act does not profess to define all the averments or allegations which must be set forth in the petition. A petition drawn in pursuance of said section 2, with no further allegation, would be entirely insufficient. Act Comp. Stat. 847, § 2.
6. The burden of alleging and proving that this is not a case which comes within the exceptions mentioned in the 1st, 16th, and 25th sections of the act rests upon the applicants, because — First, the facts are equally within the knowledge of the applicants, and are susceptible of easy proof on their part. 24 Pick. 347. Second, the respondents have no opportunity of putting in an answer or making up an issue, showing on their part that the case is embraced within the exceptions, and no way of litigating those facts before the commissioners or the court.
Cole & Case, for petitioners.
Batchelder & Buckram, and Berry & Perkins, for respondents.
This is an application by Alex. Faribault and Nicolas La Croix for a writ of certiorari to the district court for the County of Rice, to review the action of that court in the course of certain proceedings therein under chapter 129 of the Public Statutes, providing for the erection of mill-dams and mills, in certain cases. The proceedings in the court below were dismissed by that tribunal. The grounds upon which this action is based, and upon which the defendants rely in opposition to granting the writ of certiorari, are: First, the petition fails to state that the erection and maintaining of their proposed dam will not cause the injury of a water power previously improved. Second, the petition fails to state that the erection and maintenance of said dam will not destroy or impair the right of any person to erect and maintain a dam under the law existing at and before the passage of the law under which the petitioners proceed. Third, the petition does not state that the real estate sought to be overflowed and damaged is not owned by the petitioners nor damaged by consent. There is no statutory...
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