HUGHES v. CITY OF CARLSBAD
| Decision Date | 09 March 1949 |
| Docket Number | No. 5163,5163 |
| Citation | 203 P.2d 995,53 N.M. 150 |
| Parties | HUGHES et al. v. CITY OF CARLSBAD et al. |
| Court | New Mexico Supreme Court |
Caswell S. Neal and M. Rosenberg, both of Carlsbad, for appellants.
Reese & McCormick, of Carlsbad, for appellees.
The appellants, as plaintiffs below, some 200 in number, sued in the district court of Eddy County to enjoin the City of Carlsbad, a municipal corporation, its mayor and city council, from annexing to the municipality a certain area described in the complaint, lying west of, but contiguous to, the corporate limits of the city. From a summary judgment dismissing their complaint, the plaintiffs prosecute this appeal.
In conducting the proceedings for annexation the city has proceeded under 1941 Comp. §§ 14-606 to 14-608, both inclusive. The enabling act employed was adopted originally as L.1903, c. 105, consisting of seven (7) sections, but by successive amendments was reduced to its present form as found in 1941 Comp. §§ 14-606 and 14-608. See L.1935, c. 53, § 3 and L.1939, c. 204, § 2. Briefly, it provides that whenever the owners of the majority of the number of acres in the territory contiguous to any city, town or village sought to be annexed, sign and file a petition with the governing board of any city, town or village seeking annexation, accompanied by a survey and a plat of such territory, the city council or board of trustees, as the case may be, shall express by resolution consent to, or rejection of, the annexation. If consenting, a copy of the resolution, together with a copy of the plat of the territory so annexed, shall be filed in the office of the county clerk of the county in which said municipality is situated, 'and from and after such filing, the said contiguous territory shall be included in and a part of said municipality for all purposes.'
Thereupon, it becomes the duty of the mayor of the municipality, to cause to be published, in the same manner its ordinances are published, a proclamation giving notice that the contiguous territory has been annexed. The voters in the contiguous territory are privileged to vote in the next regular election and the governing board of the city, town or village is enjoined to provide by ordinance for the division of such territory into wards or for attaching same to wards already existing, to enable the voters therein to take part in the oncoming regular election.
The complaint alleged that the area which had been annexed was commonly known as 'West Carlsbad,' and was settled by approximately 4000 people, being adjacent and contiguous to the city of Carlsbad on the west, no part of which was in the corporate limits of the city; that a portion of the area, approximating slightly more than 500 acres, had been platted into lots, blocks, streets and alleys and was built up with homes, churches, schoolsand business houses of various types, of both a public and private nature; but that approximately 312 acres on the western side of the annexed area consisted of dry, barren, sparsely settled, unimproved land, which could and would receive no benefits from municipal government. The plaintiffs further complained that to bring said area into the city would subject them to restrictive ordinances of the city, higher ad valorem taxes as well as other municipal taxes, excise and otherwise, without corresponding benefits.
The validity of the proceedings was assailed on the ground that the statute under which the city was acting had been repealed by a subsequent legislative enactment, namely, L.1947, c. 211, but that if not repealed, that the provisions of said statute had not been substantially complied with in that no survey of the annexed area accompanied the petition for annexation presented to the city council and in that, if the 312 acres of dry, barren, inimproved land to the west, the inclusion of which was not be good faith, be excluded,the petition for annexation does not have signatures of owners of a majority of the number of acres sought to be annexed.
The answer of defendants set up the various steps taken by the municipality to accomplish the annexation of the territory involved, including the proclamation of the mayor giving notice that the contiguous territory had been annexed to the city, which was duly published, as required by law; and further alleging that, subsequently, the city was by ordinance divided into four wards and the annexed territory incorporated with one of the wards. Thereafter, as the answer disclosed, at the regular municipal election held on April 6, 1948, at which all legal voters in the annexed area so desiring were permitted to vote, an alderman was elected from the ward comprising the annexed area. In the same election, as appears from the answer, general obligation bonds were authorized as follows:
"Sewer Bonds $450,000.00 Public Buildings Bonds (for 2 fire stations) 50,000.00 Street Improvement Bonds 30,000.00
Complaint and answer having been filed, the defendants forthwith moved for summary judgment on the ground that there was no genuine issue as to any material fact, attaching the supporting affidavits of twelve deponents. In due course, the plaintiffs likewise moved for summary judgment, also taking the position that there was no genuine issue as to any material fact and supporting their motion by the affidavits of various persons. After trial, the court entered its judgment in which, after denying the motion of plaintiffs and sustaining that of the defendants, it dismissed the complaint.Whether the trial court erred in so doing is the question we are called upon to determine in passing upon this appeal.
A careful review of the record satisfies us that there was no error in denying the motion of the plaintiffs, and granting that of the defendants, for summary judgment. Attached to the affidavit of E. A. Roberts in support of defendants' motion were copies of all official acts and documents relating to the annexation. The findings of the city counsel recited in the resolution of annexation, read:
'(a) A large portion of the land has been platted and held for sale or used as town lots;
'(b) A large portion of the land is being held to be brought on the market and sold as urban property;
'(c) The lands furnish the abode for approximately 4,000 people and represent a portion of the actual growth of the city of Carlsbad beyond its legal boundaries;
'(d) The inhabitants of the area are in deed of municipal facilities, including water, street lights, sewers, police protection and fire protection, and the lack of water and sewer facilities creates a potential and ever-growing menace to the health of the inhabitants of said area, as well as to the health of citizens of Carlsbad.
'(e) The land is chiefly valuable by reason of its adaptability for urban purposes;
'(f) Said area combined with the present City of Carlsbad actually constitutes one community unit;
'(g) Said area is contiguous to the present City of Carlsbad.
'(h) The owners of a majority of the acres in said area have signed the petition for annexation, the petitioners owning approximately 63.9% of the gross acreage in said area and approximately 74% of the gross acreage after elimination of the area comprising streets, alleys, parks, canals and other public ways;
'(i) It is to the best interests of the City of Carlsbad and to the inhabitants and owners of property in the area described in said petitions that said area be annexed to the City of Carlsbad.'
It was demonstrated by affidavits, uncontroverted by the plaintiffs, that owners of acreage far in excess of the percentage required by law signed the petition for annexation. The plaintiffs do not claim otherwise, their only contention in this behalf being that the 312 acres of rocky, barren, unsettled and unplatted land on the western said of the annexed area, were not entitled to consideration in calculatingthe acreage signed up for by the owners. Accordingly, so far as issuable facts are concerned, unless we can say as a matter of law, because of the factors mentioned in connection with this acreage,it is unsuitable for annexation as urban property, the motion for summary judgment by defendants was properly sustained. 1941 Comp. § 19-101(56c); Ades v. Supreme Lodge Order of Ahepa, 51 N.M. 164, 181 P.2d 161; Schreffler v. Bowles, 10 cir., 153 F.2d 1; Lincoln Electric Co. v. Linde Air Products Co., 6 cir., 171 F.2d 223; Hazeltin...
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