Parker Hotel Co. v. City of Grand Forks

• Decision Date: 15 May 1970
• Docket Number: No. 8612,8612
• Citation: 177 N.W.2d 764
• Parties: PARKER HOTEL COMPANY, a corporation, et al., Plaintiffs and Appellants, v. CITY OF GRAND FORKS, a municipal corporation, et al., Defendants and Respondents, and Royce LaGrave, as Director of the Grand Forks Urban Renewal Agency, and Myron E. Denbrook, James L. Lamb, and Jason Grabau, as members of the Grand Forks Urban Renewal Agency Commission, Defendants. Civ.
• Court: North Dakota Supreme Court

Page 764

177 N.W.2d 764

PARKER HOTEL COMPANY, a corporation, et al., Plaintiffs and Appellants, v. CITY OF GRAND FORKS, a municipal corporation, et al Defendants and Respondents and Royce LaGrave, as Director of the Grand Forks Urban Renewal Agency, and Myron E. Denbrook, James L. Lamb, and Jason Grabau, as members of the Grand Forks Urban Renewal Agency Commission, Defendants.

Civ. No. 8612.

Supreme Court of North Dakota.

May 15, 1970.

Rehearing Denied June 12, 1970.

Syllabus by the Court

1. Certiorari lies only to review acts in want or in excess of jurisdiction and cannot be extended further than to determine whether the inferior court, tribunal, or board has regularly pursued its authority.

2. Jurisdiction, within the meaning of that term as used in the statute on certiorari, means power and authority to act with respect to a particular subject.

3. Section 130 of the Constitution directs the Legislative Assembly to provide, by general law, for the organization of municipal corporations. These municipal corporations, when created pursuant to statute, become agencies of the State and have only the powers expressly conferred upon them by the Legislature, or such as may be necessarily implied from the powers expressly granted.

4. A city is a municipal corporation.

5. A city is empowered to lay out, establish, open, grade, pave, or otherwise improve and regulate the use of its streets. In doing so, it may extend any street over any railroad track within the corporate limits. It may pay the cost of street improvement by the special assessment method and, in doing so, may enter into an agreement with the State to share the cost.

6. The powers of a city to extend a street over any railroad track within the corporate limits necessarily implies the power to construct an overpass for this purpose. The overpass becomes a part of the street, constitutes an improvement of streets, and is a part of the municipal street system.

7. An appeal to the Supreme Court in a certiorari proceeding is not triable de novo under Section 28--27--32, N.D.C.C., but such appeal is governed by Section 28--18--09, N.D.C.C., requiring that specifications of error be prepared and served.

8. The appellate court, in an appeal which requires that specifications of error be served, will consider only errors appearing on the judgment roll proper where no specifications of error were served as required by statute.

9. Certiorari, in this State, will lie only to review acts in want or excess of jurisdiction and, where jurisdiction is shown, the court cannot control the judgment and discretion exercised by the inferior tribunal or board in exercising its powers.

Daniel S. Letnes and Robert A. Alphson, Grand Forks, for plaintiffs and appellants.

J. Gordon Caldis, Grand Forks, for defendants and respondents.

Robert Vaaler of Stokes, Vaaler, Gillig, Warcup & Woutat, Grand Forks, amicus curiae.

TEIGEN, Chief Justice.

This is an appeal from a judgment quashing and vacating a writ of certiorari.

The plaintiffs brought this certiorari proceeding in the district court, claiming that the City Council of the City of Grand Forks exceeded its jurisdiction when it created Street Improvement District No. 5, Project No. 1999. It was created for the purpose of defraying the city's share of the cost of construction of a proposed overhead railroad-highway separation structure (hereinafter referred to as an 'overpass'), with the remainder of the cost to be contributed by the State of North Dakota by agreement with the North Dakota Highway Department. Under the city's plan, special assessments would be levied against the property located within the street improvement district for the purpose of raising the city's share of the cost of the construction of the overpass. The city's share of the cost of the improvement, in accordance with this agreement, will be $1,500,000, or 75% Of the total estimated cost of the project. It also appears that the Grand Forks Urban Renewal Agency has taken steps to secure a Federal grant in excess of $5,000,000 to carry out a program of urban renewal in a portion of the city's downtown section which is not included in the street improvement district. To carry out the program of urban renewal, the city agreed to construct the overpass in question as part of its equivalent to a cash contribution to qualify for the Federal urban renewal grant. The urban renewal project involves an expenditure of nearly $7,000,000.

The overpass project was initiated upon a petition submitted to the City Council of the City of Grand Forks by a group of owners of property located within the street improvement district. In the proceedings to establish the street improvement district, protests were filed by another group of owners of property within the said district. This area is generally known as the central business district of Grand Forks. The protests were found insufficient to block the proposal for the creation of the street improvement district and the resolution creating it was adopted. Subsequent thereto, some of the protestants joined as plaintiffs in the commencement of this proceeding in certiorari, alleging that the city has exceeded its jurisdiction in adopting the resolution establishing the street improvement district. In their application for the writ, the plaintiffs allege that the City Council of the City of Grand Forks exceeded its jurisdiction in that: (1) an overpass is not an improvement of streets within the provisions of Section 40-- 22--06, N.D.C.C.; (2) the proposed overpass is not an improvement for which a special improvement district may be created because its benefit will be general rather than special; and (3) no evidence was adduced by the city to prove the necessity for the overpass.

On application, the trial court issued its writ of certiorari commanding the city to certify and return fully a transcript of the records and proceedings pertaining to the creation of the special improvement district, and requiring the city, in the meantime, to desist from further proceedings in the matter to be reviewed. Pursuant to the command contained in the writ, the city made a return and certified its records and proceedings to the court. No other evidence was adduced at the hearing. The court considered the records and proceedings certified to it, pursuant to the writ, and determined that the city had not exceeded its jurisdiction and quashed and vacated its writ. Judgment was entered accordingly and the plaintiffs have appealed.

Section 32--33--01, N.D.C.C., provides:

'A writ of certiorari shall be granted by the * * * district court when an officer, board, tribunal, or inferior court has exceeded the jurisdiction of such officer, board, tribunal, or inferior court, as the case may be, and there is no appeal, nor, in the judgment of the court, any other plain, speedy, and adequate remedy, and also when, in the judgment of the court, it is deemed necessary to prevent miscarriage of justice.'

This statute has been considered by this court on a number of occasions and we have uniformly held that certiorari will lie only to review acts in excess of jurisdiction and cannot be extended further than to determine whether the inferior court, tribunal, or board has regularly pursued its authority. City of Fargo v. Annexation Review Commission (N.D.1963), 123 N.W.2d 281; State ex rel. Dreyer v. Brekke, 75 N.D. 468, 28 N.W.2d 598; and the cases cited therein.

Jurisdction is defined in State ex rel. Dreyer v. Brekke, Supra, as follows:

'Jurisdiction within the meaning of that term as used in the statute, section 32--3301, N.D.R.C. 1943 means 'power and authority to act with respect to any particular subject matter."

Section 32--33--09, N.D.C.C., limits the extent of review. It provides:

'Except as otherwise provided by law, the review upon a writ of certiorari cannot be extended further than to determine whether the inferior court, tribunal, board, or officer has pursued regularly the authority of such court, tribunal, board, or officer.'

There is no contention made by these plaintiffs that the statutory procedure required to be followed in the enactment of the resolution was not strictly complied with. Their challenge is to the power of the city council to establish a special improvement district for the purpose of levying special assessments to pay the city's share of the cost for the construction of an overpass.

Section 130 of the Constitution directs the Legislative Assembly to provide, by general law, for the organization of municipal corporations. This section gives the Legislative Assembly the power to create and control the government of cities. State ex rel. Shaw v. Frazier, 39 N.D. 430, 167 N.W. 510; State ex rel. City of Fargo v. Wetz, 40 N.D. 299, 168 N.W. 835, 5 A.L.R. 731; Murphy v. City of Bismarck (N.D.1961), 109 N.W.2d 635. Since the Constitution directs the Legislative Assembly to provide, by general law, for the organization of municipal corporations, these municipal corporations, when created pursuant to law, become agencies of the State and have only the powers expressly conferred upon them by the Legislature, or such as may be necessarily implied from the powers expressly granted. Megarry Bros. v. City of St. Thomas (N.D.1954), 66 N.W.2d 704; Murphy v. City of Bismarck, Supra.

A city is a municipal corporation (Section 40--01--01, N.D.C.C.) and it takes its powers from the statutes which give it life. In defining its powers, the rule of strict construction applies and any doubt as to their existence, or extent, must be resolved against the city. However, if the power is determined to exist, the rule of strict construction no longer applies and the manner and means of exercising those powers, where not prescribed by the Legislature, are left to the discretion of the municipal authorities. Lang v. City of Cavalier, 59 N.D. 75, 228 N.W. 819; James v. Young, 77 N.D. 451, 43 N.W.2d 692, 20 A.L.R.2d...