Lerch v. Short, 34163

• Court: United States State Supreme Court of Iowa
• Writing for the Court: DE GRAFF, J.
• Citation: 185 N.W. 129,192 Iowa 576
• Parties: WILLIAM LERCH et al., Appellees, v. W. M. SHORT et al., Appellants
• Docket Number: 34163
• Decision Date: 22 November 1921

185 N.W. 129

192 Iowa 576

WILLIAM LERCH et al., Appellees,
v.
W. M. SHORT et al., Appellants

No. 34163

Supreme Court of Iowa, Des Moines

November 22, 1921

Appeal from Woodbury District Court.--GEORGE JEPSON, Judge.

THIS is an appeal from the action of the Woodbury district court in declaring null and void, under a writ of certiorari, an ordinance of the city council of the city of Sioux City, vacating an alley.

Affirmed.

Free & Pickus, E. G. Smith, and Kindig, McGill, Stewart & Hatfield, for appellants.

Marks & Marks, Shull, Gill, Sammis & Stilwill, and Henderson, Fribourg & Hatfield, for appellees.

DE GRAFF, J. EVANS, C. J., WEAVER and PRESTON, JJ., concur.

OPINION

DE GRAFF, J.

Two questions are presented on this appeal. 1st. May the validity of an ordinance vacating an alley be tested by certiorari? We are committed to the proposition that certiorari is the proper remedy. Stubenrauch v. Neyenesch, 54 Iowa 567, 7 N.W. 1; McLachlan v. Incorporated Town of Gray, 105 Iowa 259, 74 N.W. 773; Rockwell v. Bowers, 88 Iowa 88, 55 N.W. 1.

2d. May the trial court hear evidence dehors the return in order to determine whether or not the tribunal whose act is [192 Iowa 577] brought into question had jurisdiction, or otherwise acted illegally?

Code Section 4154 provides:

"The writ of certiorari may be granted when authorized by law, and in all cases where an inferior tribunal, board or officer exercising judicial functions is alleged to have exceeded his proper jurisdiction, or is otherwise acting illegally, and there is no other plain, speedy and adequate remedy."

Appellants contend that in determining whether or not the inferior tribunal had jurisdiction or acted illegally, no evidence outside of the return can be considered. We are not inclined to limit the writ of certiorari within such narrow walls. It is said in Hatch v. Board of Supervisors, 170 Iowa 82:

"Certiorari is tried in the district court primarily upon the return made to it, and Code 4159 provides that, if that return be defective, the court may order a further return, and compel same by attachment. By provision of Code 4160, the district court hears the matter 'upon the record, proceedings, and facts as certified, and such other testimony, oral or written, as either party may introduce.' Clearly enough, this authorizes the introduction of such oral testimony as either party may elect, in addition to the record and the facts certified by return, original or amended. But it does not say to what such testimony may be addressed. We are satisfied this permits no [185 N.W. 130] more than the addressing of oral testimony to the question whether the tribunal in review has exceeded its jurisdiction, or otherwise acted illegally."

It clearly appears from our decisions that any testimony bearing upon the question of jurisdiction, or whether or not the lower tribunal otherwise acted illegally, is admissible.

The title to streets and alleys of a city is held by the city in trust for the public, and the council may not dispose of them in disregard of the public good or to subserve the...