City of Wahoo v. Dickinson

• Decision Date: 21 February 1888
• Citation: 36 N.W. 813,23 Neb. 426
• Parties: CITY OF WAHOO v. DICKINSON ET AL.
• Court: Nebraska Supreme Court

23 Neb. 426

36 N.W. 813

CITY OF WAHOO

v.DICKINSON ET AL.

Supreme Court of Nebraska.

February 21, 1888.

Syllabus by the Court.

Where the city council of the city of W., by a vote of two-thirds of all the members elect, adopted a resolution to annex to said city certain contiguous territory, (describing it,) and thereupon the city filed a petition in the district court, together with an accurate plat of the territory sought to be annexed, and prayed for the annexation of such territory, the petition stating all the facts required by Comp. St. § 99, c. 14, objection being made that the power conferred on the district court was legislative and not judicial, held, that, as a condition of such annexation, the court was required to find the allegations of the petition to be true, and that such territory, or a part thereof, would receive material benefit from its annexation to such city, or that justice and equity required such annexation, and to enter a decree accordingly. The questions are so far of a judicial character that the courts may be invested with jurisdiction to determine them.

Appeal from district court, Saunders county; POST, Judge.

S. H. Sornborger, for plaintiff.

J. R. Gilkerson and W. R. Kelly, for defendants.

MAXWELL, J.

In October, 1886, the proper authorities of the city of Wahoo passed a resolution that “we favor and demand, as a matter of right, the annexation of the territory contiguous to the city of Wahoo,” etc., and described the territory sought to be annexed. The city thereupon filed a petition in the district court of Saunders county, setting forth the facts required by the statute, and attached an accurate map of the territory sought to be annexed to the said petition, and prayed for a decree of the court annexing the territory set forth in the petition to the city of Wahoo. There were nearly 100 persons who owned the land sought to be annexed, all of whom were made defendants, and service duly had upon them. The appellants answered the petition, and upon a decree being rendered against them appealed to this court. There is no bill of exceptions, and the only question before this court is whether or not the district court had jurisdiction. This question is to be determined from the construction to be placed upon section 99, c. 14, Comp. St., which is as follows: “When any city or village shall desire to annex to its corporate limits any contiguous territory, whether such territory be in fact subdivided into tracts or parcels of ten acres, or less, or be not so subdivided, the council or board of trustees of said corporation shall vote upon the question of such annexation, and if a resolution to annex such territory, describing the same in general terms, be adopted by two-thirds vote of all the members elect of such council or board of trustees, said resolution, and the vote thereon, shall be spread upon the records of said council or board. Said city or village may thereupon present to the district court of the county in which such territory lies a petition praying for the annexation of such territory, together with an accurate plat or map of the same, showing the subdivisions of said territory, if it be so subdivided, and its relative position to such a city or village; and such petition shall set forth the resolution of said council or board of trustees for annexation of the same, and the vote thereon, and also the names of the various owners of said territory, if there be more than one such owner, and shall also set forth the material benefits and advantages to be derived from such annexation. A notice of the filing of said petition shall be served upon the owner or owners of said adjacent territory in the same manner as a summons in civil actions; and in case said owner or owners be non-residents of the state, said notice shall be published in the manner provided for service by publication in civil actions. Issues shall be joined, and the cause tried in the same manner, as nearly as may be, as provided for trial of causes under the Code of Civil Procedure, except that no judgment for costs shall be rendered against any defendant who does not make any defense. If the court find the allegations of the petition to be true, and that such territory, or any part thereof, would receive material benefit by its annexation to such corporation, or that justice and equity require such annexation of said territory, or any part thereof, a decree shall be entered accordingly; and a copy of the decree of said court, duly certified under the seal thereof, together with a plat of the territory with a proper description thereof, so decreed to be annexed, and, in case the same is already subdivided, showing the same subdivided into block and lots to correspond as near as may be with the fact, and as near as may be with the lots,...