Opinion
No. 25,301.
May 14, 1926.
When annexation of territory to city is not reviewable by certiorari.
The action of a city council in annexing territory to the municipality under G.S. 1923, § 1843, being legislative and not judicial in character, cannot be reviewed by writ of certiorari.
Certiorari, 11 C.J. p. 122 n. 62 New, 63; p. 123 n. 89; p. 134 n. 94 New.
Upon the relation of Jacob Minikus the district court for Swift county granted its writ of certiorari directed to the city council and the city of Benson to review proceedings in annexing territory to the municipality under G.S. 1923, § 1843. Relator appealed from the judgment entered pursuant to an order dismissing the writ, Baker, J. Affirmed.
J.A. Lee, C.A. Fosnes and John C. Haave, for relator.
Ozro Yakey, for respondents.
The relator seeks on writ of certiorari to review the proceedings of the city council in annexing territory to the municipality under G.S. 1923, § 1843. He appealed from a judgment entered pursuant to an order dismissing the writ.
Official acts that are purely legislative in their nature cannot be reviewed by certiorari. The fact that an officer or board in the performance of duty has to ascertain certain facts and, in doing so, determine what the law is, does not of itself render the acts judicial. In order to be judicial the acts must affect the rights or property of a person in a manner analogous to that in which they are affected by proceedings in court. When the proceeding is judicial, no right of appeal being given, certiorari will lie.
In this case it is said that the council had to decide: (1) Whether the petition was signed by a majority of the property, owners; and (2) whether the land sought to be annexed abutted the city. It is asserted that these acts are judicial. We think not. This case is analogous to the county commissioners forming a new school district or to proceedings under L. 1895, p. 696, c. 298. It cannot be reviewed by certiorari. In re Petition of Johnson, 150 Minn. 524, 184 N.W. 214; Lemont v. Dodge, 39 Minn. 385, 40 N.W. 359; State v. Clough, 64 Minn. 378, 67 N.W. 202. Perhaps the remedy is by quo warranto. State v. Kinney, 146 Minn. 311, 178 N.W. 815; Dun. Dig. § 8064; State v. Board, 66 Minn. 519, 68 N.W. 767, 69 N.W. 925, 73 N.W. 631, 35 L.R.A. 745.
Affirmed.