Page:North Dakota Reports (vol. 48).pdf/884

 extends upon or over said unplatted lands,” it shall be the duty of the council to exclude the territory. It is held:

A sewer outlet extending upon or over lands within the proviso of the statute is that portion of a sewer which serves no other purpose than to connect the sewer system with the point of discharge.

Municipal corporations — sewer extending across petitioner’s land held an outlet within the proviso of statute relating to excluding territory.

2. The evidence, including the resolution of the city council in disposing of the petition for exclusion, is examined and it is held that the portion of the sewer constructed upon the petitioner’s land is used as an outlet extending upon and over the same within the proviso of the statute.

Appealed from the District court of McLean county, Nuessle, J.

Reversed and remanded.

Benton Baker, for appellant.

The propriety of the remedy selected. This proceeding for a writ of certiorari is a proper proceeding for the relief demanded. Section 8445, C. L. 1913. State ex rel. Mayo v. Thursby-Butte Special School Dist. 178 N. W. (N. D.) 787; State ex rel. Johnson v. Clark, 21 N. D. 516, 131 N. W. 715; Red River Brick Co. v. Grand Forks, 27 N. D. 8, 145 N. W. 725; Hieneman v. Alexandria, 32 S. D. 368, 143 N. W. 291; Pelletier v. Ashton, 12 S. D. 366, 81 N. W. 735, 11 C. J. 104; Public Service Co. v. Board of Public Utility Commissioners, 87 N. J. L., L. R.A. 1918A, 421.

Failure to perform a duty imposed by law constitutes an excess of jurisdiction of the council and renders the action of the council reviewable by a writ of certiorari. State ex rel. Mayo v. Thursby-Butte Special School Dist. supra; Younger v. Santa Cruz, 136 Cal. Supr. Ct. 682, 687, 69 p. 485; McClatchey v. Sacramento 119 Cal. Sup. Ct. 413, 51 p. 696, 39 L. R. A. 691, 11 C. J. 94.

Any departure from the recognized and standard requirements of law, however close the apparent adherence to mere form in method of procedure, which has the effect to deprive one of a constitutional right is as much an excess of jurisdiction as where there is an inceptive lack of power. Younger v. Santa Cruz, Sup. Ct., supra; McClatchey v. Sac-