State ex rel. Claver v. Broute

• Decision Date: 19 March 1924
• Citation: 50 N.D. 753,197 N.W. 871
• Parties: STATE ex rel. CLAVER v. BROUTE, Mayor, et al.
• Court: North Dakota Supreme Court

50 N.D. 753

197 N.W. 871

STATE ex rel.CLAVER

v.BROUTE, Mayor, et al.

Supreme Court of North Dakota.

Sept. 5, 1923.

Rehearing Denied March 19, 1924.

Syllabus by the Court.

Following Baker v. Lenhart et al., 195 N. W. 16, 33, recently decided by this court, it is held, that certiorari does not lie to compel a city council to detach territory from the corporation, under chapter 32, S. L. 1921.

Appeal from District Court, Grand Forks County; Charles M. Cooley, Judge.

Certiorari by the State, on the relation of Charles N. Claver, against John Broute, Mayor of the City of Reynolds, and others. From a judgment for plaintiff, defendants appeal. Reversed, and writ discharged.

Bronson, C. J., dissenting.

I. A. Acker, of Hillsboro, for appellants.

J. B. Wineman, of Grand Forks, for respondent.

JOHNSON, J.

This is an appeal from an order of the district court of Grand Forks county, which granted the prayer of the plaintiff petitioner, directing and commanding the city council of the city of Reynolds to grant the petition of Charles N. Claver “for the disconnection and exclusion of said land from the city limits,” and which commanded the city council of the city of Reynolds “to enact an ordinance disconnecting said lands from within the city limits.”

Proceedings in the trial court were upon certiorari. The appellants, on the oral argument, strenuously contend that certiorari does not lie, and rely on the case of Baker v. Lenhart et al. (N. D.) 195 N. W. 16, 33.

The petitioner, Charles N. Claver, with other members of his family, petitioned the city council of Reynolds, N. D., that certain described territory be excluded from the city. It is alleged in the petition that the lands were “wholly unplatted, and no municipal sewers, water mains, pavements, sidewalks or other improvements have been made or constructed therein, and the said lands have been, and are, used solely for farming purposes only.” It is further alleged that the petitioner, Charles N. Claver, is the sole owner of this land and that the other petitioners, four in number, “are the only legal voters residing upon said land.” The petitioners brought themselves within the terms of chapter 32, S. L. N. D. for the year 1921. The council refused to enact an ordinance detaching the territory, and thereupon the petitioner, Claver, made application to the district court of the First judicial district for a writ of certiorari, which was granted. An answer and return was made. The court made its findings and entered its order as heretofore set forth, commanding the council to enact an ordinance in accordance with the prayer of the petition, disconnecting the territory described.

An examination of section 3969, C. L. 1913, which was amended by chapter 79 of the Session Laws of 1919 and again by chapter 32, S. L. 1921, discloses the fact that when it was made to appear to the council, by a petition asking that certain described territory be detached from the city is wholly unplatted and no municipal sewers, water mains, pavements, sidewalks, or other city, town, or village improvements have been made or constructed therein, it is the duty of the city council to disconnect and exclude such territory. It is not disputed in this case that no such improvements existed upon this territory sought to be detached by the appellants, and the council, notwithstanding these facts, refused to pass an ordinance detaching the territory.

In view of the objection made by the appellant to the propriety of the remedy and jurisdiction of the trial court to issue a writ of certiorari in this case, we find it unnecessary to examine the numerous constitutional objections urged by appellant against the validity of chapter 32 of the Session Laws of 1921. In the recent case of Isaac. P. Baker v. A. P. Lenhart et al., 195 N. W. 16, 33, the majority of this court held that the proceedings of the city commission of the city of Bismarck, acting upon a petition for the detaching of territory under facts substantially the same as in the case at bar, and pursuant to chapter 32, S. L. 1921, could not be reviewed by certiorari; that under our law “‘a writ of certiorari shall be granted by the Supreme and district courts, when inferior courts, officers, boards or tribunals have exceeded their jurisdiction 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.’ Section 8445, C. L. [1913], as amended by chapter 76, Laws 1919,” that “jurisdiction relates to the power of the tribunal, and not to the rights of the parties,” and that “errors of law committed by the inferior court in the exercise of its authority cannot be considered; and in such case, no matter how erroneous the decision may be, even on the face of the record, the reviewing court has no power to change, annul, or reverse it in a proceeding in certiorari.”

If the statute be construed to vest in the landowner, at his pleasure, the power to withdraw territory from and thereby to change the boundaries of a municipal corporation, and that the city council or the city commission have only a ministerial duty to perform in that regard, it seems difficult to sustain the act against the charge that it is an attempt to delegate legislative power in contravention of the Constitution and in violation of the rule laid down in Morton v. Holes, 17 N. D. 154, 115 N. W. 256.

The judgment of the trial court is reversed, and the writ dismissed.

NUESSLE and BIRDZELL, JJ., concur.

CHRISTIANSON, J.

I concur in the opinion prepared by Mr. Justice JOHNSON. This case involves an application to detach a certain tract of land from the city of Reynolds, in this state. Such application was presented to the city council under the provisions of chapter 32, Laws 1921. The city council denied the application and refused to pass an ordinance disconnecting the tract of land in question. The petitioner thereupon applied to the district court for a writ of certiorari for the purpose of reviewing the action of the city council. In the petition for such writ he alleges that on October 3, 1921, he presented a petition to the city council of the city of Reynolds asking that a certain tract of land therein described be excluded from said city; that said petition was verified, and was signed by himself and the members of his family; that he was the sole owner of the land sought to be disconnected and that the persons who signed such petition constituted all the legal voters residing upon said land; that prior to the presentation of such petition he had caused notice to be published that the application to detach would be presented to the city council at a meeting of the city council held October 3, 1921; that at such meeting he presented proof of the facts alleged in the petition, and also presented to the said city council for enactment and asked that it enact an ordinance entitled “An ordinance restricting the limits of the city of Reynolds and disconnecting and excluding the S. W. 1/4 of section 1, township 148, north of range 51 therefrom;” that such ordinance was given its first reading at the meeting at which it was presented; that at an adjourned meeting of said city council held December 12, 1921, said ordinance was placed upon its second reading, and that “on motion duly made and seconded, said city council, by a vote of all the aldermen present, refused to grant the request of the petitioner and rejected his petition and refused to pass said ordinance.”

The district court issued a writ of certiorari ex parte. Upon the return day the defendants appeared and filed a return to such writ. The return admitted the presentation of the application for detachment of the territory, also admitted that the city council had refused to pass the ordinance disconnecting the territory in question, and alleged that the property sought to be detached was part of the territory included within the limits of the city of Reynolds at the time of its incorporation as a city. Such return further alleged that chapter 32, Laws 1921, was unconstitutional, in this, that it violated certain constitutional provisions specifically enumerated in the return. After hearing, the district court entered its judgment to the effect:

“That the proceedings of the city council of the city of Reynolds in refusing to grant the petition for the disconnection and exclusion of the S. W. 1/4 of section 1, township 148, north of range 51, from within the limits of the city of Reynolds, be modified and annulled.”

And in said judgment it was further ordered and adjudged that:

“Said defendants as members of the city council of the city of Reynolds grant the petition of Chas. N. Claver to disconnect and exclude the S. W. 1/4 of township 148, north of range 51, from within the limits of the city of Reynolds, N. D., and to enact an ordinance carrying such action into effect.”

The judgment so entered is the one involved on this appeal.

In the recent case of Baker v. Lenhart et al. (N. D.) 195 N. W. 16, 33, the question as to the extent of review on certiorari, as well as the question as to the extent of review of the decision of a city council made under chapter 32, Laws 1921, upon an application for the disconnection of territory from the city, were fully considered; and the conclusion was there reached that the city council, and that body alone, was vested with power to receive and act upon a petition for the detachment of territory from a city; that such body is vested with power to hear evidence and draw conclusions therefrom; and that no other body or tribunal has been vested with power to review the city council's determination of such application. The rule announced in that case is applicable here and is decisive of this case.

It has been suggested that inasmuch as no specific question was raised in the district court as to the propriety of the remedy that that...