Adleman v. Pierce

QUARLES, J.

— The common council of Boise City passed, on May 8, 1897, an ordinance requiring the grading, curbing, and paving of Main street from the west curb line of Fifth street to the west line of Tenth street, in said city, and providing that part of the cost thereof should be charged to the abutting landowners. After advertising for bids as required by said ordinance, the council accepted, May 17, 1897, the bid of Thomas X. Muir & Co., and let a contract for the work to said firm. The appellant (one of the abutting owners upon the portion of said street to be paved under said contract) filed on May 24, 1897, in the court below, his petition for a writ of review, for the purpose of reviewing the action of said city council in letting the said contract. An alternative writ was issued, to which return was made by respondents, who moved to quash the writ on divers grounds, one of which was “that the petition for the writ does not state facts sufficient to constitute a cause of action,” and another being that the writ would not lie to review the action of the common council complained of, such action *297 being administrative, and not judicial. The theory of the plaintiff seems to be that that certain act of the legislature amending the charter of Boise City, approved February 9, 1897 (Sess. Laws 1897, p. 226), is void, first, because it is special legislation, and therefore repugnant to the constitution of Idaho; and, second, for the reason that said act was not passed in the manner required by section 16, article 3, of the constitution; that, said act being void, the said ordinance was unauthorized and void. From these premises plaintiff concludes that the action of the common council in letting said contract was void, and in letting said contract the'council exceeded its jurisdiction.

The question that confronts us at the outset is one of jurisdiction. Can the courts of this state .oview the action of a city council in letting a contract for the making of public improvements ? This question is to be determined by the provisions of our code. Revised Statutes, section 4962, is as follows: "A writ of review may be granted by any court except a probate or justice’s court, when an inferior tribunal, board, or officer exercising judicial functions, has exceeded the jurisdiction of such tribunal, board, or officer, and there is no appeal, nor, in the judgment of the court, any plain, speedy and adequate remedy.” By the express provisions of the statute the writ lies to review the action of an inferior tribunal, board, or officer exercising judicial functions, where such tribunal, board, or officer exceeds the jurisdiction of such tribunal, board, or officer. The question of jurisdiction is to be determined by the terms of the statute. The authorities cited to us from the common law, and from those states whose statutes are different from ours, have no application here, and are entitled to no weight in determining the question before us. The legislature, having defined the cases in which the writ will lie, have excluded all other cases.

This brings us to the question: In performing the act complained of (i. e., the letting of the said contract), was the common council of Boise City exercising a judicial function? We are compelled to answer this in the negative. None of the acts complained of were judicial acts. The legislature, in passing the act amending the charter of Boise City, was exercising a legislative, and not a judicial, function. The council, in pass *298 ing the ordinance complained, of, was exercising a legislative, and not a judicial, function. And, in letting the contract complained of, the council was performing an administrative function, and not a judicial one. Neither of said acts complained ot' was of a judicial or quasi judicial nature. The action sought to be reviewed not being either judicial or quasi judicial, the the district court properly quashed the alternative writ and dismissed the proceeding. (State v. Osburn, 24 Nev. 187 , 51 Pac. 837 ; Wulzen v. Board, 101 Cal. 15 , 40 Am. St. Rep. 17 , 35 Pac. 353 .) The judgment appealed from is affirmed, with costs of appeal to the respondents.

Sullivan, C. J., and Huston, J., concur.