Enderson v. Hildenbrand
| Decision Date | 02 May 1925 |
| Docket Number | 4860 |
| Citation | 204 N.W. 356,52 N.D. 533 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of McIntosh County, Wolfe, J.
Affirmed.
Affirmed with instructions.
Franz Shubeck, for appellants.
It is a fundamental rule that a state cannot by an act of its legislature alter the nature and effect of an existing contract to the prejudice of either party nor give such contract a judicial construction, binding on the parties or the courts. 6 R. C. L. § 317, p. 327.
The assurance held out by the State to purchasers at tax sales by the revenue laws of 1890, as amended in 1891 with the tax sale certificates and tax deeds issued to them would be prima facie evidence of the regularity of the tax proceedings although relating to the remedy constituted a substantial inducement to the purchaser entering into the contract with the state and so materially affecting its value, that cannot be taken away by consequent legislation without impairing its obligation. Blakemore v. Cooper, 15 N.D. 5, 4 L.R.A (N.S.) 1074.
A municipality may lawfully make contracts under which rights are acquired or liabilities incurred and the legislature cannot legally pass any statute impairing rights thus acquired, either by a municipal corporation or by persons dealing with it provided of course that the contract was one which the municipality was authorized to make. 6 R. C. L § 377, p. 345.
The law is well settled that the classification of objects or places for the purpose of legislation must be natural, not artificial. Re Connolly, 17 N.D. 550.
The classification of legislation should be based upon some operation under reason suggested by necessity. Edmunds v. Herbranson, 2 N.D. 270; Cobb v. Bard, 42 N.W. 396; State v. Harre, 42 N.J.L. 429; Louisville R. Co. v. Wallace, 11 L.R.A. 787.
The true test of unlawful statutory discrimination is whether all who are similarly situated are similarly treated and whether those who are similarly situated are hindered or prevented in their competition with others. Gunn v. R. Co., 34 N.D. 418.
It is impossible to sustain a delegation of any sovereign power of government to private citizens or to justify their assumptions of it. People ex rel. Shumway v. Bennett, 29 Mich. 451, 18 Am. Rep. 107.
H. P. Remington and A. A. Ludwigs, for respondent.
All constitutional inhibitions against the taking of private property without due process of law and all constitutional guarantees of acquired rights and privileges are for the benefit of those persons only whose rights are affected and can be taken advantage of by no other persons. 8 Cyc. 788.
Before a law can be attacked by any person on the ground that it is unconstitutional, he must show that he has an interest in the question in that the enforcement of the law would be an infringement on his rights. 6 R. C. L. 89.
Only those whose rights would be prejudiced by enforcement of an unconstitutional act can be heard to question its validity. Red River Nat. Bank v. Craig, 181 U.S. 548, 45 L. ed. 994; Clark v. Kansas City, 167 U.S. 118, 44 L. ed. 39.
That legislators have the power to define and to modify by proper general legislation the scope and the activities and to regulate the force of municipal corporations is we think fundamental. Albany County v. Laramie County, 92 U.S. 307, 23 L. ed. 553; 19 R. C. L. 732, 1 Dill., Mun. Corp. § 64; Clark v. Kansas City, 167 U.S. 118, 44 L. ed. 39.
Andres Enderson, the plaintiff, as owner of 155 acres of farm land within the town site of Ashley, in the county of McIntosh and the State of North Dakota, filed his petition with the city council of the said city of Ashley, under chapter 172 of the Session Laws of North Dakota for the year 1923. It is conceded that the petition is in due form and contains all the allegations necessary under the said session laws. It is further conceded that the notice required by said law was duly published and that a hearing was had before the said council as provided by law. There was also filed a remonstrance signed by many residents of the city, protesting against the withdrawal of said lands from the city and setting forth reasons why it should not be withdrawn. At the hearing before the city council on said petition the evidence showed that plaintiff's land was used exclusively for farming and for the pasturing of stock; that it was bordering upon and within the limits of the incorporated city of Ashley; was wholly unplatted; had no municipal sewers, water mains, pavements, sidewalks or other city improvements. Also evidence was taken on the part of the city showing the expenditure of large sums of money for building, grading and maintaining streets and highways bordering on said land and by lighting said streets and installing and maintaining culverts and a surface sewerage adjoining said land; that the land to the south of the western half of the incorporated limits of the city of Ashley is a lake and the land immediately to the west of the incorporated limits of the city of Ashley is undeeded, and that the northern part of the west half of the incorporated limits of the city of Ashley is largely a low draw and marsh and wholly unsuited and unfit for building purposes; that the city of Ashley is the county-seat of McIntosh county, a prosperous, growing city and that the lands sought to be excluded are necessary for city lots and for its future growth; that the said land is now more valuable for city lots and other municipal uses than for grazing or agricultural purposes. The board found as conclusions that said lands, sought to be disconnected and excluded from the limits of the said city of Ashley is approximately one-quarter of the area of the city limits of said city and is desirable for city lots, necessary for the growth of the city and should not be excluded from the limits of the said city of Ashley, which findings and conclusions were signed by all of the members of the city board and the petition was denied.
On the denial of the petition the plaintiff applied to the judge of the district court for a writ of certiorari to review the action of the city council in denying the plaintiff's petition. There was some question as to whether the findings of fact of the city council were in fact the actual findings of the city council, and a motion was made on affidavit and notice to the judge of the district court, to have the same corrected and made to conform to the actual findings and conclusions of the city council, which motion was denied.
According to our view of the case the findings and conclusions of the city commissioners, outside of the statutory requirements, are entirely immaterial and the court's denial of the motion to amend is in accordance with our view of the law on the subject.
All of chapter 172, of the Laws of 1923, which must be considered and construed in this action, is as follows:--
Sec. 3969. (Limits may be Restricted.) On petition, in writing signed by not less than three-fourths of the legal voters and by property owners of not less than three-fourths in value of the property in any territory, within any incorporated city, town or village, and being upon the border and within the limits thereof, the city council of the city, or the board of trustees of the town or village, as the case may be, may disconnect and exclude such territory from such city, town or village; provided that the provisions of this section shall only apply to lands not laid out into city, town or village lots or blocks.
Provided, further, that when the property or lands described in such petition, bordering upon and within the limits of any such incorporated city, town or village, are wholly unplatted, and no municipal sewers, water mains, pavements, sidewalks or other city, town or village improvements have been made or constructed therein, except as hereinafter provided, and this is made to appear upon the hearing upon such petition by the city council, commission or board of trustees of the town or village, as the case may be, it shall be the duty of the city council, commission or board of trustees to disconnect and exclude such territory from the city, town or village. . . .
(Provided, further, that if any interested party is dissatisfied with the findings of fact upon which a decision is made, application may be made to a court having jurisdiction for a writ of certiorari and the review upon this writ shall extend only to the determination of whether the inferior court, tribunal, board or officer has regularly pursued the authority of such court, tribunal, board or officer, which shall include the determination of the sufficiency of the evidence to sustain the findings of fact and of law made in the course of the exercise of the authority of such inferior court, tribunal, board or officer and the correctness, as a matter of law, of the particular order, judgment or act inquired into.)
(Provided, further, that in cities having a population of three thousand and over according to the last Federal census the findings of fact and conclusions of the City Council or the City Commission shall be conclusive upon the courts.)
The first section quoted requires a petition in writing, signed by not less than three-fourths of the legal voters and property owners of not less than three-fourths in value of the property in any territory...
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