State ex rel. Red River Brick Corporation v. District Court of County of Grand forks
| Decision Date | 20 November 1912 |
| Citation | 138 N.W. 988,24 N.D. 28 |
| Court | North Dakota Supreme Court |
Mandamus by the Red River Valley Brick Corporation, Falconer Township, and School District No. 59, against the District Court of the First Judicial District, and Kneeshaw, J sitting at the request of Templeton, J.
Writ quashed.
Writ denied, and the alternative writ quashed.
George R. Robbins and George A. Bangs, for relators.
J. B Wineman, for respondents.
Briefly, the history of the matter involved in this proceeding is as follows: The city of Grand Fords, under the authority of §§ 2825 et seq., Rev. Code 1905, as amended by chap. 47, Laws of 1907, chap. 58, Laws of 1909, and chap. 47, Laws of 1911, attempted to extend its boundaries so as to embrace and include something over 700 additional acres, including 10 acres belonging to the Red River Valley Brick Corporation, one of the relators herein. In proceedings thereafter instituted in the district court, Hon. Chas. F. Templeton, as judge of Grand Forks county, entered judgment holding such proceedings void and the attempted annexation invalid, and restraining the city and its officers and agents from exercising or attempting to exercise any authority or jurisdiction by reason thereof, and particularly from assessing, for purposes of taxation, the property situated in the territory so attempted to be annexed.
May 22d, 1912, defendants perfected an appeal to the supreme court from such judgment. The appeal was taken by service of notice, and the giving of bond was especially waived. Whereupon the city assessor of Grand Forks, acting upon the advice of the city attorney, is alleged to have proceeded to assess the property lying within the proposed extension. The corporations of which it had been parts did the same. The city assessor's assessment was certified by him to the city board of equalization; the township assessments, to the county board. The assessment by the city was made May 27th, and the books were certified June 1st, and the relators' knowledge thereof was acquired June 5th, 1912. Relators thereupon immediately applied to Hon. C. F. Templeton, judge of said district, for an order requiring the city and its officers to show cause why they should not be punished for contempt for the violation of the injunctional portion of the judgment. Owing to the illness of Judge Templeton, such order was made returnable before Hon. W. J. Kneeshaw, of the seventh district, by whom it was heard. It is claimed by relators that on the hearing held June 19th the assessor and city attorney expressly admitted the violation of the injunction. The court, at the conclusion of the hearing, made its order dismissing the order to show cause and the contempt proceedings.
This court is asked, in the exercise of its superintending control over inferior courts, to review the action of the district court, and direct it to find the parties mentioned guilty of contempt, and punish them accordingly, on the theory that their admission of a violation of the injunctional portion of the judgment deprived the district court of discretion in the premises, and that it was its duty to find them guilty of contempt. On the hearing on the return day of the alternative writ, the defendants submitted a motion to quash, and also made return. The conclusion which has been reached by this court makes it unnecessary to enter into details regarding the motion and return. Sufficient reference will be made to them in the course of this opinion.
The history of the supervisory control of courts of last resort over inferior courts is a very interesting study, but to enter into a consideration thereof would unduly extend this opinion, and it can be so readily found in most comprehensive yet condensed form, in books accessible generally to the bar, that we feel no useful purpose would be served by reviewing it at this time. We call especial attention to State ex rel. Fourth Nat. Bank v. Johnson, 103 Wis. 591, 79 N.W. 1081, and the comprehensive note to that case, found in 51 L.R.A. 33; also the several opinions of the learned judges of the supreme court of Wisconsin, in State ex rel. Umbreit v. Helms, 136 Wis. 432, 118 N.W. 158; State ex rel. McGovern v. Williams, 136 Wis. 1, 116 N.W. 225, and note in 20 L.R.A. N.S. 942; and the opinion of Chief Justice Brantly in State ex rel. Whiteside v. First Judicial Dist. Ct. 24 Mont. 539, 63 P. 395.
The sections of the Constitution bearing on the subject of the supervisory control of the supreme court over inferior courts are as follows:
Sec. 86: "The supreme court, except as otherwise provided in this Constitution, shall have appellate jurisdiction only, which shall be coextensive with the state, and shall have a general superintending control over all inferior courts under such regulations and limitations as may be prescribed by law."
Sec. 87: "It shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, injunction, and such other original and remedial writs as may be necessary to the proper exercise of its jurisdiction, and shall have authority to hear and determine the same."
The legislative assembly has made regulations regarding the issuance of the writ of mandamus, which we need not notice further than that they provide for the writ to be directed to an inferior tribunal to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust, or station, or to compel the admission to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by any inferior tribunal. Section 7822, Rev. Codes 1905. And that the writ must be issued in all cases where there is not a plain, speedy, and adequate remedy in the ordinary course of law. Section 7823, Rev. Codes 1905. It is apparent from the foregoing constitutional provisions that this court is possessed of several separate and distinct classes of power, only one of which need be considered here. It is unquestionably given superintending control over inferior courts, and it has the power to issue any of the writs named, and such others as may be necessary to the proper exercise of such control. In several cases this court has passed upon its power to issue prerogative writs, and has held that it would issue them only when the sovereignty of the state, its prerogatives, or the liberties of its citizens were involved, or the matter was publici juris. The respondents cite and rely upon such cases. They, however, are not authority when the court is requested to exercise its superintending control.
In other instances we have been called upon to supervise and review the proceedings of inferior courts, but it has generally been held that a proper case was not presented for the exercise of this power. Gunn v. Lauder, 10 N.D. 389, 87 N.W. 999; State ex rel. Dorgan v. Fisk, 15 N.D. 219, 107 N.W. 191; Murphy v. District Ct. 14 N.D. 542, 105 N.W. 728, 9 Ann. Cas. 170; State ex rel. Atty. Gen. v. District Ct., 13 N.D. 211, 100 N.W. 248; Schouweiler v. Allen, 17 N.D. 510, 117 N.W. 866; Selzler v. Bagley, 19 N.D. 697, 124 N.W. 426; Stockwell v. Crawford, 21 N.D. 261, 130 N.W. 225.
This superintending power conferred by the Constitution of this state, as well as by most of the other Constitutions, is primarily over courts, and was granted so there might be some method by which the harmonious working of our judicial system could be insured, and to meet emergencies, and where other relief provided is inadequate or incomplete. Its relation to litigants is only incidental. It was not intended to grant, by this provision, the power of review as by appeal. That power is the first power enumerated in § 86, and is separate and distinct from the superintending power. People v. Richmond, 16 Colo. 274; State ex rel. Fourth Nat. Bank v. Johnson, supra; State ex rel. Umbreit v. Helms, 136 Wis. 432, 118 N.W. 158; State v. First Judicial Dist. Ct., 24 Mont. 539, 63 P. 395. It is held in the last cited case that the writs enumerated in the Constitution are not the appropriate writs for the exercise by the supreme court of its superintending control, but, in effect, that the character of the writ must be determined on the facts and by the necessities of each case, and that it should be denominated, whatever its character, a "supervisory writ." We deem the appellation of the "writ" as wholly immaterial.
When a proper case arises for the exercise of this power, the writ necessary to fit the case may take the nature of a command or of a prohibition, or, to enable the court to determine its character, it may be found necessary to issue a preliminary writ requiring records to be certified up, and this may be done. We are satisfied that the authorities to which reference has been made are applicable here, and that their determination of the purpose of the Constitution framers in granting this superintending control is correct. It has been so intimated in several of the cases decided by this court to which reference has been made. Whether or not the remedy by appeal is adequate or speedy must be determined by the exercise of the sound discretion of this court, applied to the facts in each given case. State ex rel. Dorgan v. Fisk, 15 N.D. 219, 107 N.W. 191. And this rule has been held to apply to the original writs when not sought to control the action of an inferior court. Among other authorities, see State ex rel. Walker v. McLean County, 11 N.D. 356, 92 N.W. 385; State ex rel. Byrne v. Wilcox, 11 N.D. 329, 91 N.W. 955; Duluth Elevator Co. v. White, 11 N.D. 634, 90 N.W. 12; State ex rel. Davis v. Willis, 19 N.D. 209, 124 N.W....
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