City of Fargo v. Annexation Review Commission of Cass County

• Decision Date: 19 December 1966
• Docket Number: No. 8231,8231
• Citation: 148 N.W.2d 338
• Parties: CITY OF FARGO, North Dakota, a municipal corporation, Plaintiff and Appellant, v. ANNEXATION REVIEW COMMISSION OF CASS COUNTY, North Dakota, et al., Defendantsand Respondents.
• Court: North Dakota Supreme Court

Page 338

148 N.W.2d 338

CITY OF FARGO, North Dakota, a municipal corporation Plaintiff and Appellant, v. ANNEXATION REVIEW COMMISSION OF CASS COUNTY, North Dakota et al., Defendantsand Respondents.

No. 8231.

Supreme Court of North Dakota.

Dec. 19, 1966.

Rehearing Denied Feb. 14, 1967.

Syllabus by the Court

1. After a defendant has appeared specially and objected to the jurisdiction of the court or tribunal, and after an adverse ruling, or where no ruling was made, the defendant does not waive the objection to the jurisdiction by answering and trying the case on the merits.

2. A certiorari proceeding is not an Action within the meaning of § 28--27--32, N.D.C.C. This section only provides for trial anew of Actions by the Supreme Court. As certiorari is a special proceeding, and not an action, a trial de novo is not available in the Supreme Court.

3. In the codification of statutes the general presumption obtains that the codifiers did not intend to change the law; and mere changes of phraseology or punctuation, or the addition or omission of words, or the rearrangement of sections or parts of a statute, or the placing of portions of what formerly was a single section in separate sections, does not change the operation, effect or meaning of the statute unless the changes are of such nature as to manifest clearly and unmistakably a legislative intent to change the former law.

4. Certiorari lies only to review acts in want of or in excess of jurisdiction. The enactment of ordinances and statutes being within the jurisdiction of the legislative bodies, the writ of certiorari may not be employed to challenge the constitutionality of such ordinances or statutes.

5. Certiorari lies only where there is a want or excess of jurisdiction, and the inquiry is limited to the review of acts in want or in excess of jurisdiction of the inferior tribunal.

6. The extent of the review of the writ has been limited in this State by the provisions of § 32--33--09, N.D.C.C.; the inquiry can only go to determine the question of jurisdiction; if such tribunal has regularly pursued its authority, the inquiry stops.

7. In a certiorari proceeding reviewing the actions of the Annexation Review Commission the court cannot go into the question of computing the number of owners in the area purported to be annexed as that is not a jurisdictional question.

8. To determine the intent of the legislature we examine all the statutes relating to annexation. Here, the several sections in the Century Code relating to annexation were originally one act and provided for an appeal from the action of the governing body of the City to the Annexation Review Commission, which Commission was authorized to set a time and place for hearing the evidence for or against such annexation and render its decision accordingly. Held, that the legislature intended that the guidelines that govern the action of the governing body of a city also govern the action of the Annexation Review Commission insofar as they are applicable to the proceedings by the Annexation Review Commission.

9. Where an action is tried in the lower courts seeking a specified remedy appellant cannot be heard for the first time on appeal from an adverse judgment to urge a different remedy.

10. A proceeding to enjoin the City from proceeding further with the annexation does not constitute an election of remedies, and thus preclude the protestants from appealing to the Annexation Review Commission. In order for the action taken by the protestants to constitute an election of remedies, the election must be through decisive action between inconsistent remedies. The doctrine of inconsistent remedies rests on the principle that a party may not take contrary positions, and, where there are two inconsistent remedies asserting one amounts to a repudiation of the other, and such deliberate choice precludes such party from thereafter going back to the other. Here the remedies pursued are not inconsistent, but are, in fact, consistent, one with the other.

Conmy, Conmy & Feste, Fargo, for plaintiff and appellant.

Wattam, Vogel, Vogel, Bright & Peterson, Fargo; Cupler, Tenneson, Serkland & Lundberg, Fargo; and Jacque Stockman, Fargo, for defendants and respondents.

KNUDSON, Justice (on reassignment).

The city of Fargo sought to annex an area of 1053.304 acres of land adjacent to the north and west of the city, and to accomplish this annexation the city commission adopted an annexation resolution on October 9, 1963. The annexation resolution was duly published as provided by law in The Fargo Forum, the last publication thereof being on November 8, 1963.

Seventeen owners of property within the area sought to be annexed filed their written protests against the annexation on November 20, 1963, with the city auditor.

The protestants contended that they constituted more than three-fourths of the property owners by number of all the taxable land annexed and that the matter of the annexation must now be referred to the Annexation Review Board, as provided by § 40--51--08.1, N.D.C.C. The city commission, on December 17, 1963, determined that the protestants did not constitute three-fourths of the property owners and were less than a majority of the owners, and set the 14th day of January, 1964, as the date for hearing the protests.

The protestants then brought an action seeking a temporary injunction to enjoin and restrain the city from proceeding further in its attempted annexation, including the hearing set for January 14, 1964, and for a permanent injunction prohibiting the annexation. This action was dismissed by the Judge of the District Court on March 2, 1964, from which judgment an appeal was taken by the protestants to the Supreme Court. (This appeal has not been submitted to this Court.)

The protestants filed with the city auditor on March 9, 1964, their special appearance in the annexation proceeding before the city commission with the demand that no further annexation proceedings be held by the city commission on the following grounds: (1) that an appeal is now pending from the judgment of the District Court in the case brought by the protestants against the city of Fargo; (2) that as more than three-fourths by number of the owners of land having an assessed valuation within the territory proposed to be annexed have protested said annexation, the question of annexation must be submitted to the Annexation Review Board in accordance with § 40--51--08.1, N.D.C.C.

The city commission adjourned the hearing set originally for January 14, 1964, from time to time, and it ultimately was held on March 17, 1964. The city commission, on April 14, finally determined that the protests were not signed by more than three-fourths of the property owners, nor by one-fourth of the property owners, that the greater portion of the territory proposed to be annexed consisted of land not used exclusively for farming or pasture purposes, and adopted a resolution annexing the area to the city of Fargo.

On April 17, 1964, the protestants brought another action against the city of Fargo to (1) temporarily enjoin and restrain the city from proceeding further to implement the attempted annexation by causing the property to be assessed for tax purposes, or controlling its use and occupation, pending a full and complete determination of the action, and (2) for a permanent injunction prohibiting the defendant from proceeding with said annexation and that the said annexation be declared invalid.

And the protestants on April 17, 1964, also filed a notice of appeal from the annexation resolution adopted on April 14, 1964, with the chairman of the Annexation Review Commission pursuant to §§ 40--51--10 and 40--51--11, N.D.C.C. The chairman of the Annexation Review Commission set the date of the hearing on such appeal for June 15, 1964.

The city entered its special appearance in writing and objected to the jurisdiction of the Annexation Review Commission to hear the appeal on the grounds that §§ 40--51--10 and 40--51--11, N.D.C.C., are unconstitutional and void because they are in violation of and contrary to § 85 of Article IV, § 25 of Article II, and § 13 of Article I of the Constitution of North Dakota, and also in violation of § 1 of Article XIV of the Constitution of the United States of America.

Also, without waiving its special appearance, the city moved to dismiss the appeal to the Annexation Review Commission on the grounds that § 40--51--10, N.D.C.C., provides that an appeal must be taken from the action of the governing body in extending the limits of the city in accordance with § 40--51--07 within ten days 'from the date thereof,' and no appeal was taken here until April 17, 1964. The city contends that the appeal should have been taken within ten days after October 9, 1963, the date the first annexation resolution was adopted, and which is the resolution referred to in § 40--51--07, and further moved to dismiss the appeal on the grounds that the written protest as required by § 40--51--08 was not signed by more than one-fourth of the property owners. The city contends that all owners are to be counted whether their lands are or are not taxable and whether they own only a cemetery lot or any size tract of land or an interest in a tract. The protestants contend that only lands and owners of land that are taxable are to be counted in computing the number of owners.

The city further moved to dismiss the appeal to the Annexation Review Commission on the grounds that the protestants brought an action in the district court of Cass County in which they asserted the same errors and made the same claims as they presented in the appeal to the Annexation Review Commission and that action is still pending in the courts. Therefore, the protestants elected their remedy and waived any right they may have to take the appeal to the Annexation Review Commission.

The Annexation Review Commission proceeded to hear the...