In Re Acquisition of Flying Cloud Airport

1 Reported in 32 N.W.2d 560. In certiorari proceedings, the Minneapolis-St. Paul Metropolitan Airports Commission, a public corporation (hereinafter called the commission), appeals from an order of the district court vacating the commission's order for the acquisition of Flying Cloud Airport. In furtherance of its policy favoring the creation, ownership, and operation of a secondary airport system, the commission on May 8, 1947, held a public hearing anent its proposed acquisition of an existing and licensed flying field known as Flying Cloud Airport. Notice of the hearing was given by publication and by actual service of notice upon the American Aviation Corporation as owner of said airport. The relator, DePonti Aviation Company, Inc., through its *Page 274 attorney, appeared at the hearing and participated therein to the extent of calling the commission's attention to L. 1947, c. 363, § 15 (M. S. A. 360.111, as amended), which, with respect to any existing and licensed airport, provides in part as follows: "* * * such airport shall not be acquired or taken over by the corporation [commission] except after notice to all interested parties, a public hearing had, and a finding by the corporation that the operation of such airport is inconsistent with the safety of flight to and from airports owned or operated or presently to be or being constructed to be operated by the corporation [commission] * * *." Relator suggested that the commission possibly had no authority to acquire Flying Cloud Airport for the purpose of continuing its operation as part of a publicly owned secondary airport system because the above statute apparently prohibits the acquisition of any existing licensed airport except upon a specific finding that its continued operation is an air traffic hazard. Under relator's theory, if said statute is applicable, no licensed airport in existence may be acquired except for the sole purpose of effecting its elimination as an operating field. The hearing, however, was continued on the basis that the applicability and effect of the statute could be determined later. Relator, after first advising the commission that it was not opposed to the creation of a secondary airport system, suggested that its creation be accomplished through the establishment of new airports and not through the acquisition of those already existing. In support of its suggestion, relator asked to be given five or six days in which to furnish the commission with certain data on secondary airports and private flying fields. The data was never supplied. Subsequently, without making a finding that the continued operation of Flying Cloud Airport was inconsistent with the safety of flight to and from other airports, the commission ordered that said airport be acquired by condemnation. Relator as a taxpayer petitioned the district court for, and was granted, a writ of certiorari for the review and stay of the commission's proceedings. A motion to quash on the ground that relator *Page 275 was not a party to the proceedings was denied. The trial court then made an order vacating the commission's order for the acquisition of Flying Cloud Airport on the ground that such order was illegal in the absence of a finding that the operation of such airport was inconsistent with the safety of flight to and from other airports in the metropolitan area. 1. Whether L. 1947, c. 363, § 15 (M. S. A. 360.111, as amended), is here applicable, so as to require a finding that the continued operation of Flying Cloud Airport constitutes a traffic hazard, need not be determined unless it is first established that relator has properly invoked the jurisdiction of the court through certiorari. Under our practice, the writ of certiorari is a writ of review in the nature of a writ of error or an appeal. State ex rel. Nordin v. Probate Court,200 Minn. 167,273 N.W. 636; 1 Dunnell, Dig. Supp. § 1391. The right of appeal is purely statutory and is subject to such conditions as the legislature sees fit to impose. Williams v. Minnesota State Board of Medical Examiners, 120 Minn. 313,139 N.W. 500; State v. Tri-State T. T. Co. 146 Minn. 247, 250,178 N.W. 603, 604. 2-3. L. 1947, c. 363, § 19 (M. S. A. 360.125), expressly provides that the writ of certiorari shall issue upon the"petition of any party to the proceedings before thecommission." (Italics supplied.) Was relator a party to the proceedings? Whether a litigant is a party to the proceedings so as to qualify for a writ of certiorari must be determined from the record made and certified by the court, board, or commission whose proceedings are under review, and a return thereof which is responsive to the writ is conclusive upon appeal. State ex rel. Peterson v. City of Alexandria,210 Minn. 260, 297 N.W. 723. According to the record, relator is not the owner of Flying Cloud Airport and does not have any interest in the surrounding property. Relator's indirect interest as an active participant in aviation is by itself of no significance. See, Steenerson v. G. N. Ry. Co. 60 Minn. 461,62 N.W. 826. Likewise, it is obvious that relator, by merely appearing at the hearing by its attorney to offer advice and suggestions, acquired thereby no standing as a party to the proceedings. *Page 276 Relator assumes, however, that its appearance and participation in the public hearing, coupled with its status as a taxpayer, made it a party to the proceeding within the meaning of the statute. In view of the nature of the writ of certiorari and the signification heretofore given to the phrase "party to the proceedings," relator's assumption is without merit. In State v. Tri-State T. T. Co. 146 Minn. 247, 251,178 N.W. 603, 604, this court in construing such phrase in a similar statute said: "* * * We are under no necessity of searching for the intention of the legislature. It has used the term 'party to a proceeding' in the same sense as 'party to an action.' A stranger to an action cannot take any part in it except to intervene or apply for leave to become a party. * * * He is not a party merely because he is directly interested in the result. * * * or has an independent claim he seeks to assert without being named as a party. * * * The term 'parties' includes those who are directly interested in the subject matter and who have the right to control the proceedings, examine and cross-examine the witnesses and appeal from the order or judgment finally entered. * * * The phrase 'a party to the proceeding' is to be construed in its ordinary legal meaning, and embraces only such persons as are parties in a legal sense and who have been made or become such in some mode prescribed or recognized by law, so that they are bound by the proceeding." In the more recent case of State and R. R. W. H. Comm. v. R. I. M. T. Co. 209 Minn. 105, 295 N.W. 519, in harmony with certain foreign jurisdictions, we stated the rule to be that one who appears as an actor in a litigation or proceeding claiming or asserting an interest in the subject matter thereof is a party, although he may have failed to file a written pleading. Unless this rule is interpreted in the light of the facts to which it was applied, it serves no purpose other than to extend the horizon of confusion. In Merchants Heat Light Co. v. J. B. Clow Sons, 204 U.S. 286, 290, 27 S. Ct. 285,286, 51 L. ed. 488, 490, Mr. Justice Holmes pointed out the divergence of opinion as to what constitutes an "actor." By *Page 277 substituting the word "actor" for "party," we have scarcely accomplished more than to trade one label of uncertainty for another. Assuming that a person is an actor in a proceeding, to what extent must he participate to become recognized as a party? In Henderson v. Henderson,247 N.Y. 428, 433, 160 N.E. 775, 777, the court said "that a defendant participating in the litigation as an actor in a genuine and substantial sense" is subject to the jurisdiction of the court. What is genuine and substantial to one may not be so to another. What kind of an interest must the so-called genuine and substantial actor assert? Obviously, at its best the rule, as worded, is nothing but an elastic yardstick whereby, according to the current outlook of the court, the same degree of participation may one day constitute the actor a party to the proceeding and the next day not. If we ignore the ambiguity of its terms, the scope of the rule may be determined from the facts to which it was applied in State and R. R. W. H. Comm. v. R. I. M. T. Co. 209 Minn. 105,295 N.W. 519, and from the prior decisions therein distinguished. Both before the commission and the district court, the Brotherhood of Railroad Trainmen, in response to notice, but without making a formal appearance, with the tacit consent of the respondent, participated actively in the proceeding as a contestant on the merits. In respect to the issue of whether the respondent should be permitted to operate a truck line in conjunction with the railroad, the Brotherhood had an interest peculiar to itself and its members apart from the interest of the public at large. By the outcome of the proceedings, the Brotherhood would be affected adversely or favorably. Upon this set of facts, the Brotherhood was properly held to be a party to the proceedings. In so holding, however, the court distinguished the prior decisions of State v. Tri-State T. T. Co. 146 Minn. 247,178 N.W. 603, and Steenerson v. G. N. Ry. Co. 60 Minn. 461,62 N.W. 826, by stating that they were not in point (209 Minn. 112,295 N.W. 524) "for the reason that in each of those cases there was no appearance or litigation by consent and the presence of the party claiming the right to appear was objected to at the first opportunity below." Obviously, these decisions were not merely distinguished, but in *Page 278 part actually overruled, in that a broader definition of the phrase "party to the proceedings" was adopted. See, 25 Minn. L.Rev. 938. It is submitted that the correct rule, and the one actually applied, is as follows: An actor who participates, with or without formal pleading or intervention, as an active contestant on the merits for the determination of issues of law or fact, and who by the outcome of the proceeding will be bound and affected either favorably or adversely, with respect to an asserted interest peculiar to him as distinguished from an interest common to the public or other taxpayers in general, is a party to the proceeding. There is a distinction between participating in the proceedings simply to assist in clarifying the issues and in participating therein on the merits as a party asserting a peculiar interest likely to be affected by the outcome. See, Steenerson v. G. N. Ry. Co. 60 Minn. 461, 474, 62 N.W. 826, 830; 25 Minn. L.Rev. 938. 4. Applying the above rule, it is obvious that relator never became a party to and was not bound by the proceedings. Any order of the commission in regard to Flying Cloud Airport could have no different effect upon relator than it would have upon any other taxpayer. The fact that relator is a taxpayer is not alone sufficient to give it a right by certiorari to review the commission's proceedings, involving the exercise of a legislative or administrative function, without a showing that relator possessed an interest not common to all taxpayers.2 It had no such interest in the subject matter as would make its participation as a party to the proceedings either necessary or proper. Although taxpayers have a remedy for thwarting an illegal expenditure of public funds, relator's remedy is not *Page 279 through certiorari. A holding to the contrary would be to vest any taxpayer who appeared at a public hearing of the commission with the right to a writ of certiorari and a consequent right to take control of subsequent proceedings to the exclusion of the real parties in interest. Conklin v. County Commrs.13 Minn. 423 (454); Steenerson v. G. N. Ry. Co. 60 Minn. 461,62 N.W. 826; State v. Tri-State T. T. Co. 146 Minn. 247,178 N.W. 603. The order of the trial court is reversed. Reversed. 2 This is the general rule. See, Conklin v. County Commrs.13 Minn. 423 (454); Collins v. City of Keokuk, 108 Iowa 28,78 N.W. 799; Sampson v. Commrs. of Highways, 115 Ill. App. 443; Annotations, Ann. Cas. 1913C, 911, 103 A.S.R. 112, 18 Ann. Cas. 667; 10 Am. Jur., Certiorari, § 17; 52 Am. Jur., Taxpayers' Actions, § 31. For illustrations of acts involving exercise of administrative or legislative functions, see 5 Dunnell, Dig. Supp. § 8078e, and cases cited under note 29.