State ex rel. Dreyer v. Brekke

• Decision Date: 06 August 1947
• Docket Number: 7043.
• Citation: 28 N.W.2d 598,75 N.D. 468
• Court: North Dakota Supreme Court

28 N.W.2d 598

75 N.D. 468

STATE ex rel. DREYER et al. v. BREKKE et al.

No. 7043.

Supreme Court of North Dakota

August 6, 1947

Syllabus by the Court.

1. In this state certiorari will lie only to review acts in excess of jurisdiction. Section 32-3301, N.D.R.C 1943.

2. 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.'

3. Where an act is done by a board in the exercise of its lawful jurisdiction, mere error of judgment by the board in exercising its power does not constitute excess of jurisdiction.

4. Pursuant to the statute, sections 40-0501, 40-0502 N.D.R.C 1943, the governing body of a municipal corporation has power and authority to regulate the use of the streets of such municipality by prescribing parking regulations therefor.

Halvor L. Halvorson, of Minot, for appellants.

R H. Bosard, City Atty., of Minot, for appellees.

C L. Foster, of Bismarck, amicus curiae.

NUESSLE Judge.

The relators, seeking to challenge Ordinance No. 527, enacted by the city council of the city of Minot on May 20, 1946, applied to the district court of Ward County for a writ of certiorari. The application was resisted by the City. After hearing had the writ was denied. Relators thereupon perfected the instant appeal.

Ordinance No. 527 is entitled: 'Ordinance Regulating Traffic and Regulating the Use of Public Streets and Avenues in the City of Minot; Defining and Establishing Parking Meter Zones and Regulating and Controlling and Providing for the Inspections of the Time Parking of Vehicles Therein by the Use of Parking Meters: Prescribing Limits of Time for Parking in the Parking Meter Zones: Providing for the Payment and Collection of Fees Through the Parking Meters: and Providing Penalties for the Violation of this Ordinance and Punishment for Its Violation.'

Consistent with this title the ordinance provides for parking meter zones on certain streets of the city of Minot, for the designation of parking space, and the installation of parking meters therein to be placed upon the curb adjacent thereto, for the times when such meters shall be in operation, and for the purchase and installation of the meters. The ordinance further fixes the length of time that parking spaces may be occupied and the denomination of the coins to be inserted in the meters in order to register the length of time of occupancy, and provides penalties for overtime parking and for other violations of the ordinance. It also provides in section 15 thereof that: 'The amount of the coins required to be deposited in parking meters as provided herein is hereby charged and collected as a fee to provide for the proper regulation, control, and inspection of traffic upon the public streets, and to cover the cost of supervising, regulating, and inspecting the parking of vehicles in the parking meter zones provided for herein, the cost of placing and maintaining lines or markings designating parking spaces in parking meter zones, and the cost of the purchase, supervision, protection, inspection, installation, operation, maintenance, control, and use of the parking meters installed hereunder and the special fund in which such fees shall be placed shall be devoted exclusively to those purposes.'

The relators challenge the ordinance on the ground that it is unconstitutional and void; that the city council acted without and beyond its jurisdiction in enacting and adopting the same; and allege that the relators will be injured by reason of its enforcement and pray for relief by way of certiorari.

The statute, section 32-3301, N.D.R.C.1943, provides that, '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, bribunal, 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 court has often had occasion to consider and apply this statute and has uniformly held that certiorari will lie only to review acts in excess of jurisdiction. See, State ex rel. Johnson v. Clark et al., 21 N.D. 517, 131 N.W. 715, and cases cited therein; State ex rel. Noggle v. Crawford, 24 N.D. 8, 138 N.W. 2; State ex rel. Wehe v. Frazier, 47 N.D. 314, 182 N.W. 545; Baker v. Lenhart, 50 N.D. 30, 195 N.W. 16; State ex rel. Ness v. Board of Com'rs of City of Fargo, 63 N.D. 85, 246 N.W. 243; State ex rel. Olson v. Welford, 65 N.D. 522, 260 N.W. 593; Bryan v. Olson, 68 N.D. 605, 282 N.W. 405. Accordingly, the primary question here is as to whether the city council of Minot acted in excess of its jurisdiction in enacting the challenged ordinance.

Webster's New International Dictionary, 2d ed., defines jurisdiction as 'Authority of the sovereign power to govern or legislate; power or right to exercise authority; control.' And the New Century Dictionary as 'The extent or range of judicial or other authority.' In Baker v. Lenhart, supra [50 N.D. 30, 195 N.W. 17], this court said, 'Jurisdiction relates to the power of the tribunal, and not to the rights of the parties, Dahlgren v. Superior Court, 8 Cal.App. 622, 97 P. 681. 'The test of the jurisdiction of a court is whether or not it had power to enter upon the inquiry; not whether its conclusion in the course of it was right or wrong.' Board of Com'rs of Lake County v. Platt, [8 Cir.], 79 F. 567. 25 C.C.A. 87, 'Excess of jurisdiction is to be distinguished from errors of law or of fact committed by the inferior tribunal within the limits of its jurisdiction. Such an error does not constitute an excess of jurisdiction. If a court acts in the exercise of its lawful jurisdiction, and not in excess of such jurisdiction, the mere fact that its conclusion is wrong does not make its action an excess of jurisdiction.' 4 Cal.Jur., pp. 1036, 1037.' See, also Hanson v. North Dakota Workmen's Compensation Bureau, 63 N.D. 479, 248 N.W. 680; State Board of Dental Examiners v. Savelle, 90 Colo. 177, 8 P.2d 693, 82 A.L.R. 1176. Summed up, we think that jurisdiction within the meaning of that term as used in the statute, section 32-3301, supra, may be defined as the power and authority to act with respect to any particular subject matter.

In the instant case the ordinance challenged parports to be a regulatory measure. There is no contention made by the relators that the procedure required to be followed in the enactment of the ordinance was not strictly complied with. Their challenge is to the power of the city commission to regulate the use of the streets of the city of Minot in the manner prescribed by the ordinance. Accordingly, pursuant to the authorities above cited, if the commission was empowered to regulate the use of the streets of the city to which the ordinance had application, then it had jurisdiction to enact such a regulatory ordinance as in its judgment seemed proper and efficacious to attain that end, and mere error of judgment in thus exercising its power would not constitute excess of jurisdiction.

A municipal corporation takes its powers from the statutes which give it life and has none which are not expressly or impliedly conferred thereby or essential to effectuate the purpose of its creation. Lang v. Cavalier, 59 N.D. 75, 228 N.W. 819.

The statute, section 40-0501, N.D.R.C.1943, enumerating the powers conferred on municipalities, provides:

'The governing body of a municipality shall have the power:

'1. To enact or adopt all such ordinances, resolutions, and regulations, not repugnant to the constitution and laws of this state, as may be proper and necessary to carry into effect the powers granted to such municipality or as the general welfare of the municipality may require, and to repeal, alter, or amend the same. Fines, penalties, and forfeitures for the violation thereof may be provided within the limits specified in this chapter notwithstanding that such offense may be punishable also as a public offense under the laws of this state;

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'8. To lay out, establish, open, alter, repair, clean, widen, vacate, grade, pave, park, or otherwise improve and regulate the use of streets, alleys, avenues, sidewalks, crossings, and public grounds; to regulate or prevent any practice having a tendency to annoy persons frequenting the same; and to prevent and regulate obstructions and encroachments upon the same;

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'17. To regulate traffic and sales upon the streets, sidewalks, and public places;'

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And section 40-0502, N.D.R.C.1943, provides:

'The city council in a city operating under the council form of government and the board of city commissioners in a city operating under the commission system of government, in addition to the powers possessed by all municipalities shall have power:

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'14. To regulate, control, or restrict within designated zones or congested traffic districts, the use of streets, alleys, or other public ways by various classes of traffic, except that any municipal regulations shall be ineffective as to common carriers licensed by this state under a certificate of public convenience and necessity until such regulations are approved by the public service commission.'

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Clearly pursuant to the provisions of these statutes the city of Minot was empowered to regulate the use of its streets. But the relators say that the powers thereby conferred were limited and circumscribed by later enactments contained in Title 39, fifteen chapters comprising sections 39-0101 to 39-1503, inclusive, N.D.R.C.1943, having...