State Ex Rel. Dreyer v. Brekke

28 N.W.2d 598, 75 N.D. 468, 1947 N.D. LEXIS 84

• Court: North Dakota Supreme Court
• Decided: August 6, 1947
• Docket: File 7043
• Status: Published

Opinions

Nuessle, J.

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 OP PEES THROUGH THE PARKING METERS: AND PROVIDING PENALTAIES POR THE VIOLATION OP THIS ORDINANCE AND PUNISHMENT POR 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 he 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 § 15 thereof that:

“The amount- of the coins required to he 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, § 32-3301, ND Rev Code, 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, tribunal, or inferior court, as the case may he 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, 21 ND 517, 131 NW 715, and cases cited therein; State ex rel. Noggle v. Crawford, 24 ND 8, 138 NW 2; State ex rel. Wehe v. Frazier, 47 ND 314, 182 NW 545; Baker v. Lenhart, 50 ND 30, 195 NW 16; State ex rel. Ness v. Fargo, 63 ND 85, 246 NW 243; State ex rel. Olson v. Welford, 65 ND 522, 260 NW 593; Bryan v. Olson, 68 ND 605, 282 NW 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, 50 ND 30, 195 NW 16, supra, 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 is right or wrong.’ Lake County v. Platt (CCA 8th) 79 F 567. ‘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 Comp. Bureau, 63 ND 479, 248 NW 680; State Dental Examiners v. Savelle, 90 Colo 177, 8 P2d 693, 82 ALR 1176. Summed up, we think that jurisdiction ■within the meaning of that term as nsed in the statute, § 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 purports to be a regulatory measure. There is no contention made ° by the relators that the procedure required to he 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 its 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 ND 75, 228 NW 819.

The statute, § 40-0501, ND Eev Code 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 he provided within the limits specified in this chapter notwithstanding that such offense may he punishable also as a public offense under the laws of this state;

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 pub- lie 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;

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

And § 40-0502, ND Rev Code 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:

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;

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 §§ 39-0101 to 39-1503, inclusive) NI> Rev Code 1943, having to do with motor vehicles and motor vehicular traffic. We think, however, there is nothing in title 39, which in any way restricts the powers granted pursuant to the sections above quoted, insofar as those sections empower the city to regulate the use of the streets by prescribing parking regulations. It is true that § 39-0704, provides:

“Except as expressly authorized by § 39-0903, and section 39-0703, local authorities may not alter any speed limitations declared in chapter 9 of this title, or enforce any rule or regula tion contrary to the provisions of chapters 8 to 13, inclusive, of this title. Local authorities, under ordinance, shall have the power to:

1. Begulate traffic by means of traffic officers, .semaphores, or other signaling devices on any portion of the highway where traffic is heavy or continuous;

2. Prohibit other than one-way traffic upon certain highways;

3. Regulate the use of the highways by processions or assemblages; and

4. Regulate the speed of vehicles in public parks. Adequate signs giving notice of any such special speed limit that may be provided for by subsection 4 of this section shall be erected and placed in the entrances to all such parks.”

Chapters 8 to 13, inclusive, above referred to, respectively deal with:

8. Regulations Gfoverning Operators,

9. Speed Restrictions,

10. General Rules of the Road,

11. Equipment of Yehicles,

12. Size, Width, and Height Restrictions, and

13. Traffic Signs.

Without reciting the particular provisions of these several chapters, it is enough to say that there is no provision contained therein which is in any way affected by the ordinance challenged in the instant case. The only reference to parking or parking regulations is contained in Chapter 13. Section 39-1302 thereof provides: “Local authorities in their respective jurisdictions may cause appropriate signs to be erected and maintained, designating residence and business districts, highway and railway grade crossing’s, and such other signs as may be deemed necessary to carry out the provisions of this chapter, and such additional signs as may be appropriate to give notice of local parking and other special regulations ,” while § 39-1303 provides: “Local parking and other special regulations shall not be enforcible against an alleged violator if, at the time and place of the alleged violation, an appropriate sign giving notice thereof is not in proper position and suffi ciently legible to be seen by an ordinarily observant person.” Thus these provisions recognize rather than deny the right of local authorities to make and enforce parking regulations. It is obvious, therefore, that municipalities such as the city of Minot have the right in the exercise of their power to regulate the use of streets to make and enforce regulations with respect to parking.

It follows that the council of the city of Minot did not exceed its jurisdiction in enacting Ordinance No. 527.

The order appealed from is affirmed.

Biter, J., concurs. Moeeis, J., not participating.