Manning v. The City of Devils Lake, a Municipal Corporation

• Decision Date: 20 January 1904
• Citation: 99 N.W. 51,13 N.D. 47
• Court: North Dakota Supreme Court

99 N.W. 51

13 N.D. 47

MABEL MANNING v. THE CITY OF DEVILS LAKE, A MUNICIPAL CORPORATION, AND S. L. WINEMAN AS MAYOR, AND T. A. HASLAM AS TREASURER, AND OLE SKRATASS AS AUDITOR

Supreme Court of North Dakota

January 20, 1904

Appeal from District Court, Ramsey county; Cowan, J.

Action by Mabel Manning against city of Devils Lake and others. Judgment for plaintiff, and defendant appeals.

Affirmed.

B. D Townsend, for appellants.

A municipality may establish and maintain public improvements outside of its territorial limits, where necessity requires them for city purposes. People v. Kelly, 76 N.Y 475; Callam v. City of Saginaw (Mich.), 14 N.W. 677; Lester v. City of Jackson, 69 Miss. 887; Chambers v. City of St. Louis, 29 Mo. 543; Newman v. Ashe, 68 Tenn. 380; Hackett v. City of Ottawa, 99 U.S. 86, 25 L.Ed. 363.

John C Adamson, for respondent.

A municipal corporation has no power to make gifts of property or money. The building of the bridge in question was an attempted donation of public funds for the benefit of individuals. Constitution of N.D. 185.

The question is not one of enforcing police regulation, or of public health, or of finding outlets for sewer. Section 130 of the constitution directs the legislature to provide by law for the organization of municipal corporations and restrict their powers as to levying taxes, contracting debts, etc. This has been done by subdivision 2 of section 2148 Political Code, wherein the city council must confine its appropriation of money to corporate purposes; and this clearly prohibits lending of the credit of a city or gifts of its money to any project outside of its corporate limits, irrespective of benefits that its inhabitants might derive from such an expenditure.

If the right to use a corporate power is in doubt, the power is denied. Van Antwerp v. Dells Rapids Township, 53 N.W. 82; Minturn v. LaRue, 23 Howard 435, 16 L.Ed. 574; Hanger v. City of Des Moines, 2 N.W. 1105; Dill Mun. Corp. (4th Ed.) 89.

OPINION

YOUNG, C. J.

The defendants appeal from an order of the district court of Ramsey county continuing a temporary injunction, made upon an order to show cause. The action in aid of which the restraining order was issued is brought for the purpose of permanently enjoining the defendants from issuing and negotiating certain bonds which it proposes to issue for the purpose of constructing and maintaining a certain road or bridge across an arm of Devils Lake. The plaintiff alleges in her complaint that she is a resident, property owner and taxpayer in the city of Devils Lake; that said city is a municipal corporation organized under the laws of this state; that, at a city election called for that purpose, a majority of the electors voted to issue bonds of said city, in the sum of $ 6,500, for the purpose of paying the cost of construction and maintenance of a certain bridge, known as the "Pelican Point Bridge," and for paying outstanding warrants of the city of Devils Lake, issued in aid of such purpose; that the defendant Ole Skratass, the auditor of said city, has advertised for bids for said bonds; that said Pelican Point Bridge is located several miles outside of the corporate limits of said city; that the acts of the defendant and its officers in attempting to issue and dispose of said bonds for the purpose aforesaid are ultra vires and wholly void. The complaint further alleges that the officers of said city have issued a large number of city warrants, to wit, in the sum of at least $ 6,000, to aid in the construction of said bridge, and that the same are unpaid, and are about to issue other warrants and expend the moneys of the corporation for said purpose, and prays that defendants be restrained and enjoined from disposing of and issuing said bonds, and from diverting any funds of the corporation to said purpose, and from paying the outstanding warrants. Upon the foregoing complaint and upon plaintiff's affidavit a temporary restraining order was issued, together with an order to show cause why defendants should not be restrained from negotiating said bonds and paying said warrants during the pendency of the action. At the hearing of the order to show cause the defendants filed a number of affidavits setting forth the importance of the object of the proposed expenditure to the business interests of the city of Devils Lake. The court made an order that the temporary restraining order theretofore issued be continued until the final determination of the action. From this order the defendants appeal.

We are of opinion that the trial court did not err in refusing to vacate the restraining order. The question involved is one entirely of corporate power. The facts are not in dispute. From the statement of facts prefixed to appellant's brief, it appears that the so-called Pelican Point Bridge is situated in Lake township, between four and five miles southwest of, and outside of the corporate limits of, the city of Devils Lake, and consists of an embankment of earth and stone, connecting the north and south shores of Devils Lake at its narrowest point. In the center, where the water is deepest, there is a pontoon bridge or barge, about 100 feet in length, connecting the embankments. The affidavits show that the construction of the so-called bridge was commenced in the spring of 1900 by the business men of the city of Devils Lake, acting through a citizens' committee, and that a large sum of money was raised by private subscription and expended upon its construction. The land on the north side of the lake belongs to the state military reservation, and by chapter 134, p. 173, Laws 1901, the legislature granted the right to locate a highway thereon, and a highway was located by the township of Lake, in which said military reservation is situated, connecting the embankments with the public highways leading to the city of Devils Lake. The land on the south side is included in the Ft. Totten Indian reservation. The affidavits state that the city of Devils Lake acquired a right of way over the tract of land abutting on the south side from the allottee Indian owning the same, with the consent of the United States government. The road, as constructed by the citizens' committee, aside from the pontoon bridge in the center, extended about three feet above the surface of the water. Since 1901 the waters of Devils Lake have risen about thirty-eight inches, necessitating the raising of the embankments. Some $ 12,000 have been expended. The expenditures now proposed are necessary to put the road in permanent and safe condition. The affidavits filed by the defendants show that there is a large territory south of the city of Devils Lake, and a large number of people tributary, who will do their trading at that city if the bridge is constructed and maintained; that "the amount of increased trade and business brought to the city of Devils Lake during the time said highway was passable in the summer of 1901 * * * aggregated an average of approximately two hundred fifty dollars a day; that said increased business was general in character, and a direct benefit to all engaged in business in said city of Devils Lake at said time." The affidavits also show that there are more than 1,000 allottee Indians residing on the Ft. Totten Indian reservation, on the south side of the lake, who are largely engaged in agricultural pursuits, and who will do their trading at the city of Devils Lake, providing the highway in question is maintained; that there are a large number of persons in "the Cheyenne River country" who are "naturally tributary to the city of Devils Lake," and who would "market their wood and purchase their supplies at Devils Lake if the bridge were maintained;" that there are a large number of instructors in the industrial school on the Indian reservation; that said school consumes a vast amount of all kinds of merchandise and supplies, a large portion of which would be purchased at said city if said highway is opened for travel; that there is approximately 100,000 acres of unoccupied and unallotted land on the Indian reservation, which it is proposed to open to settlers, and that this, when occupied and cultivated, will increase the commercial importance of the city of Devils Lake if said highway is maintained; that the completion and maintenance of said highway communicating with the land south of Devils Lake "will greatly increase the amount of marketing and trading done at said city of Devils Lake, and otherwise greatly improve and extend its commercial relations." It is also stated that "the construction, completion and maintenance of said highway known as 'Pelican Point Bridge' is a commercial necessity to said city, and that it will greatly extend the commercial importance and trade relations of the said city; that it will greatly increase the amount of grain marketed in said city, and very materially increase and extend the territory tributary to the said city of Devils Lake, and will be a direct benefit, to a very appreciable extent, to every merchant, property owner, taxpayer and resident of said city."

There are two sufficient reasons why the proposed expenditure is illegal. It must be conceded that the validity of the bonds and warrants in question cannot be sustained unless the city has power to provide for their payment by taxation. It has been properly said that "the issue of bonds by a city whatever provision may be made for their redemption, involves the possible, and not improbable, consequence of the necessity to provide for their payment by the city. The right to incur the obligation implies the right to raise money by taxation for payment of the bonds, or, what is equivalent, the right to levy a tax for the purposes for which the fund is to be raised by means...