State ex rel. Dorgan v. Fisk

• Decision Date: 02 March 1906
• Court: North Dakota Supreme Court

107 N.W. 191

15 N.D. 219

THE STATE OF NORTH DAKOTA EX REL DENNIS DORGAN, v. CHARLES J. FISK, JUDGE OF THE DISTRICT COURT, FIRST JUDICIAL DISTRICT OF GRAND FORKS COUNTY

Supreme Court of North Dakota

March 2, 1906

Application for writ of prohibition by the state of North Dakota, on the relation of Dennis Dorgan, against Charles J Fisk, as judge of the District Court of the First judicial district.

Writ issued.

Writ issued.

C. N Frich, Attorney General, and J. B. Wineman, State's Attorney, for petitioner.

In the absence of fraud, proceedings of drain commissioners are not open to collateral attack. Turnquist v. Cass County Drain Commissioners et al., 11 N.D. 514, 94 N.W. 852; Glide v. Superior Court of County of Yolo et al., 81 P. 225; Stanley v. Supervisors of the County of Albany, 121 U.S. 535, 30 L.Ed. 1000; Bauman et al v. Ross et al., 167 U.S. 548, 19 S.Ct. 966; Pittsburg C., C. & St. L. Ry. Co. v. Backus, 154 U.S. 421, 14 S.Ct. 1114; Davidson v. Board of Admrs. of the City of New Orleans, 96 U.S. 97, 24 L.Ed. 616; Board of Directors v. Tregea, 88 Cal. 334, 26 P. 237; Fallbrook Irrigation District et al. v. Bradley et al., 184 U.S. 167, 17 S.Ct. 56; Lambert v. Mills County et al., 12 N.W. 715; Griffith v. Pence et al., 59 P. 677; Dodge County et al. v. Acom et al., 85 N.W. 292; Swan Creek Township et al. v. Brown, 90 N.W. 38; Oliver et al. v. Monona County et al. , 90 N.W. 510; Tucker v. People, 156 Ill. 108; People, etc., v. Hagar, etc., 66 Cal. 59, 4 P. 951; Terre Haute & L. R. Co. v. Soice, 128 Ind. 105, 27 N.E. 429; Brady v. Haward, 114 Mich. 326, 72 N.W. 233; Stone v. Little Yellow Drainage District et al., 118 Wis. 388, 95 N.W. 405; Skinner v. Nixon, 52 N.C. 342; Bowersox v. Wattson, 20 Ohio St. 496.

Findings of the drainage commissioners are as conclusive upon the courts as the verdict of a jury upon conflicting evidence. Miller v. Logan County, 3 Ohio Cir. Ct. 617; Smith v. City of Worcester, 182 Mass. 232, 65 N.E. 40; Prior v. Buechler, 71 S.W. 205; Klein v. Tuhey, 13 Ind.App. 74; Toledo v. Ford, 20 Ohio Cir. Ct. 290; Fort Wayne v. Cody, 43 Ind. 197.

The question of the comprehensiveness, cost or more natural outlet for the drain, is for the determination of the board, which is not for review by the courts. Heick et al. v. Voight, 110 Ind. 279, 11 N.E. 306; Maranda v. Spurlin, 100 Ind. 380; Anderson v. Baker, 98 Ind. 587; Neff v. Reed, 98 Ind. 341.

The doings of the board are legislative acts by a municipal corporation. Glide v. Superior Court of Yolo County, supra; Rice v. Snider, 134 F. 953.

Where fraud is relied upon the bill must be specific and definite as to the acts constituting it. High on Injunctions, section 21.

Prohibition is the proper remedy. 23 Am. & Eng. Enc. Law, 197.

The writ issues where the right of appeal does not afford speedy and adequate remedy. Jenkins v. Barry, 83 S.W. 594; State v. Alne, 54 S.W. 494, 26 Ky. Law Rep. 1141; Wells v. Torrance, 119 Cal. 437, 51 P. 626; Havemeyer et al. v. Superior Court, 84 Cal. 327, 24 P. 121; State of Missouri et al. v. Wear et al., 33 L. R. A. 341; Norfolk & Western Ry. Co. v. Pinnacle Coal Co., 41 L. R. A. 414; Newport News and M. Valley Co. v. McBrayer, 15 Ky. Law Rep. 399; see note, 51 L. R. A. 33; Swaneburn v. Smith, 15 W.Va. 483; Siding Cull Pepper Co. v. Gerrell, 20 Gratt. 484; Thomas v. Mead, 36 Mo. 246; City of North Yakima v. Superior Court of King County, 30 P. 1053; Quimbo Appo v. People, 20 N.Y. 531; Fayerweather v. Monson, 23 A. 878.

Tracy R. Bangs, for respondent.

The attack upon the decision of the drain commissioners is direct, not collateral. Marrill v. Marrill, 23 Am. St. Rep. 97; Bailey v. Bailey, 44 Am. St. Rep. 713; Estate of Claghorin, 59 Am. St. Rep. 681; Burke v. Interstate Sav. & Loan Ass'n, 87 Am. St. Rep. 416.

The exercise of discretionary power is not an arbitrary act of will; it is an act of judgment deciding what equity and justice require upon a given state of facts. No appeal being provided by law, the only remedy is the one invoked. 2 Enc. Pl. & Pr. 417; Patterson v. Ward et al., 6 N.D. 609, 72 N.W. 1013; Anderson v. First National Bank, 5 N.D. 80, 64 N.W. 114; Wheeler v. Castor et al., 92 N.W. 381; Fargo v. Keeney et al., 92 N.W. 836; Minn. Thresher Mfg. Co. v. Holz et al., 10 N.D. 16, 84 N.W. 581; Braithwaite v. Aiken, 2 N.D. 57, 49 N.W. 419; Gull River Lbr. Co. v. Osborn McMillan Elev. Co., 6 N.D. 276, 69 N.W. 691; Dinnie et al. v. Johnson, 8 N.D. 153, 77 N.W. 612.

No person can be a judge in his own case. Stockwell v. The Township Board, 22 Mich. 341.

The plaintiff has a plain, speedy and adequate remedy at law. State ex rel Carrau. v. Superior Court of King County, 71 P. 648; Agassiz v. Superior Court, 27 P. 49; Walker v. District Court, 35 P. 982; White v. Superior Court, 42 P. 471; Willman v. District Court, 35 P. 692; County Court v. Boreman et al., 12 S.E. 491; State v. Whiteaker, 19 S.E. 376; State ex rel Mayor v. Rightor, 6 So. 102; State v. Judge, 33 La.Ann. 925; State v. Jones, 25 Am. St. 897; People v. District Court, 77 P. 239; State v. Neal, 71 P. 647; State ex rel. Carrau v. Superior Court, supra; People v. DeFrance, 68 P. 267; County Court v. Boreman, supra; State v. Whitaker, supra; People v. District Court, 19 P. 541; Strouse v. Police Court, 24 P. 747; Agassiz v. Superior Court, supra; The Eau Claire Dells Impr. Co. v. Court. 26 Minn. 233; People v. Wayne Cir. Ct., 11 Mich. 403; State ex rel. Mayor v. Rightor, 6 So. 102; Turner et al. v. Mayor, 3 S.E. 649; State v. Jones, 26 Am. St. Rep. 897; People et al. v. District Court, 77 P. 239; Walker v. District Court, supra; White v. Superior Court, supra; Willman v. District Court, supra.

OPINION

MORGAN, C. J.

The board of drain commissioners of Grand Forks county, appointed and acting under chapter 21 of the Revised Codes of 1899, as amended by chapter 80, p. 89, Laws of 1903, instituted proceedings for the establishment of a drain in said county. The board had advertised for bids for the construction of said drain and a day was set for considering bids. Prior to the time for opening such bids 16 land owners whose lands were in the established drainage district commenced an action against the drainage board, praying that it be enjoined from taking any further proceedings in reference to letting contract for constructing the drain. The plaintiffs procured an order to show cause why a preliminary injunction should not be issued enjoining the defendant from further proceedings. On the day fixed for the hearing on the order to show cause the defendants appeared and objected to the issuance of an injunction. The objections were all overruled and the court stated that a preliminary injunction would be issued. Prior to the issuing of such injunctional order one Dennis Dorgan, claiming to be a land owner in said drainage district and beneficially interested therein, applied to this court for an alternative writ of prohibition directed to the district judge and commanding him to desist from further proceeding in the injunctional action. The district judge made his return to the writ in this court, wherein all the proceedings in the action before him and upon which he alleged that his acts were legal and justifiable were set forth. The return also denies that this court has jurisdiction to issue the writ in this case for the reason that there is a plain, speedy and adequate remedy in the ordinary course of law.

The complaint in the action against the drainage board alleged as grounds for an injunction: (1) "That the drain proposed to be constructed, and for which the plaintiff's lands are to be assessed for benefits, will not be of any benefit whatever, direct or indirect, to the plaintiffs' lands. (2) That said defendants, the said board of drain commissioners, as such board and individually, each and all know and knew on the 26th day of August, 1905, after all the facts had been submitted to it and them with respect to the benefits to accrue to the lands hereinbefore referred to that no benefit whatever would accrue to the land described herein as belonging to these plaintiffs; that notwithstanding such knowledge on the part of said board of drain commissioners and the members thereof, the said board of drain commissioners willfully, fraudulently, and in violation of the rights of these plaintiffs * * * in violation of the duties imposed upon said defendants * * * ordered and directed that said ditch or drain to be dug * * * and that the lands of these plaintiffs be assessed, taxed and charged with benefits, etc. (3) That Owen Lavelle, one of the defendants, and one of said board of drain commissioners, owns considerable lands north of the line between the townships of Walle and Grand Forks, and claims and contends, and these plaintiffs concede the fact to be, that the land so owned by said Lavelle will be benefited by the construction and maintenance of said drain. That said Lavelle has been extremely active in his efforts to force through the proceedings preliminary and incidental to the construction of said drain."

The defendants answered this complaint and alleged: (1) That the lands owned by the plaintiffs would be benefited by the construction and maintenance of the drain. (2) That the defendants, as such drainage board, are vested with sole jurisdiction in the ascertainment of the lands to be assessed and the apportionment of benefits in the construction of drains under and by virtue of chapter 21 of the Political Code of North Dakota. (3) That said drainage board is a municipal corporation and in the performance of the acts complained of in said complaint were performing a legislative act. The affidavit on which the preliminary writ of prohibition was issued recited all the proceedings taken by the board of drainage commissioners...