Glaspell v. City of Jamestown
| Decision Date | 04 January 1902 |
| Citation | 88 N.W. 1023,11 N.D. 86 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Stutsman County; Lauder, J.
Action by S. L. Glaspell and others against the city of Jamestown for the purpose of excluding certain real estate from the corporate limits of the city. Judgment for plaintiffs, and defendant appeals. Reversed.
Judgment reversed, and petition dismissed.
George W. Thorpe, for appellant.
F Baldwin and Jas. A. Murphy, for respondents.
This appeal is from a judgment of the district court of Stutsman county excluding and disconnecting certain lands from the corporate limits of the city of Jamestown. The proceeding which resulted in said judgment originated in the filing of a petition in the office of the clerk of the district court of said county after a similar petition had been presented to the city council of the city of Jamestown, and such council had refused to grant the prayer of the same. The petition as filed in the office of the clerk of the district court contained a statement of the following facts, viz.: (1) That the petitioners are the owners of the lands therein described; (2) that petitioner Smith and one Dunsmore are the only legal voters residing on said lands; (3) that no part of said territory is platted or laid out into lots or blocks and that the same is on the border and within the corporate limits of the city of Jamestown; (4) that said territory is composed of farming and pasture land, and is not benefited in any way by being within the limits of said city; (5) that petitioners did present their petition in writing to the city council of the city of Jamestown, praying that said land be excluded from the limits of said city, but the said petition was without cause and unjustly denied on February 14, 1900. Upon due notice to the city, the matters involved were duly brought before the court for determination. The city first filed objections to the jurisdiction of the district court to determine the matters involved, for the reason that the relief asked is exclusively vested in the powers of the legislature and city council, and is not, and cannot be, vested in or conferred upon the courts. This motion or objection was denied. A demurrer to the petition was then interposed upon the same grounds, and overruled. Exceptions to such rulings were saved by the city. Thereupon a hearing upon the merits was had, after which the trial court made findings of fact and conclusions of law, and ordered that judgment be entered granting the prayer of the petitioners. The court found all the facts alleged in the petition to be true, and, as conclusions of law, found "that the request of the petitioners ought to be granted, and can be so granted without injustice to the inhabitants of said city and territory, or of any person interested." From the judgment entered by the trial court excluding these lands from the corporate limits of the city of Jamestown, the city has appealed.
In this court it is contended that the law under which the court is authorized to act in relation to changing the boundaries of cities or villages is unconstitutional, as vesting in such court powers that are strictly legislative, and not judicial. Before considering the question thus raised, it becomes necessary to state the provisions of the statute and the provisions of the state constitution having any bearing on that question. Under chapter 28, Pol. Code 1899, the organization of cities is provided for by a general law. Section 2438, Rev. Codes provides that the corporate limits of a city may be restricted and territory disconnected therefrom by the city council, upon filing with said council a petition signed by not less than three-quarters of the legal voters, and by the owners of not less than three-quarters in value of the property, in any territory within any incorporated city, and being upon the border and within the limits of said city, providing that said lands have not been laid out into city lots or blocks. Section 2439, Id., provides that no final action shall be taken by the city council upon such petition unless notice of the presentation of such petition shall have been published for at least two weeks in some newspaper of the city. Section 2440 provides that in case of the refusal of the city council to grant such petition, or in case of its failure to act thereon for 30 days after such publication shall be completed, the petitioners may present their petition to the district court of the county by filing the same with the clerk of the district court. Notice of such filing shall be served upon the mayor of the city, together with a notice of the time and place of the hearing upon such petition before the court. Section 2441 is as follows: No question is raised as to the regularity of all the proceedings up to and including the presentation of the petition to the district court. The following provisions of the state constitution are deemed to have direct application to the question at issue: The constitution vests all governmental power in three departments,--executive, legislative, and judicial. Section 130 provides that the district courts shall have original jurisdiction, except as otherwise provided in the constitution, of all causes, both at law and equity, and such appellate jurisdiction as may be conferred by law. They and the judges thereof shall also have power to issue, hear, and determine writs of habeas corpus, quo warranto, certiorari, injunction, and other original and remedial writs. Section 25: "The legislative power shall be vested in a senate and house of representatives." Section 69: The legislative assembly shall not pass local or special laws pertaining to the "incorporation of cities, towns, villages or changing or amending the charter of any town, city, or village." Section 130: The legislative assembly shall provide by general law for the organization of municipal corporations. The single question is presented whether § 2440, supra, delegates to the district courts powers that are not judicial.
It is conceded that, if the power conferred by that section is not judicial, the law is repugnant to the constitution, and therefore void. In other words, it is undisputed that the delegation of legislative functions to the district courts is not contemplated by the constitution, and that the three departments of government provided for in the constitution are distinct from each other; the powers of each being therein separately defined. It is therein provided that the executive department shall enforce the laws, the legislative department shall enact, repeal, or amend the laws, and the judicial department shall construe them. It is a fundamental principle of law, and recognized by § 130 of the constitution of this state, that the creation of municipal corporations is a legislative function. Such corporations are created pursuant to legislative enactments only. Dill. Mun Corp. § 37; Cooley Const. Lim. (5th Ed.) p. 228. To further their creation in states where special legislation is prohibited, certain acts relative to their creation may be delegated by the lawmakers to be done or performed by local municipal bodies. In these cases it is deemed, nevertheless, that the performance of such acts is not the creation of the corporation. The law does that, and the organization is deemed to be perfected or created by the law upon the performance of such act by the body to which the performance of such act is delegated. People v. Burr, 13 Cal. 343 at 358. So, also, may the legislature enact a law to become operative upon the happening of certain conditions, and the determination whether such conditions exist may be left to be determined by a specified body in a specified manner. State v. Simons, 32 Minn. 540, 21 N.W. 750. Such an act is performed by the board of county commissioners in relation to the incorporation of cities, in this state, when such board, upon being petitioned, calls an election and appoints judges of elections in order that the inhabitants may vote upon the question of the incorporation of the city. Section 2339, Rev. Codes. This is not deemed a legislative function, but the delegation of...
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