Sharkey v. City of Butte

• Citation: 155 P. 266,52 Mont. 16
• Decision Date: 01 February 1916
• Docket Number: 3786.
• Parties: SHARKEY v. CITY OF BUTTE.
• Court: United States State Supreme Court of Montana

155 P. 266

52 Mont. 16

SHARKEY v. CITY OF BUTTE.

No. 3786.

Supreme Court of Montana

February 1, 1916

Appeal from District Court, Silver Bow County; John B. McClernan Judge.

Suit by John Sharkey against the City of Butte. Judgment for plaintiff, motion for new trial denied, and the defendant appeals. Judgment and order affirmed.

J. V Dwyer, J. A. Groeneveld, and N. A. Rotering, all of Butte for appellant.

E. M Lamb and Geo. V. Le Sage, both of Butte, for respondent.

HOLLOWAY J.

In 1913 the city of Butte undertook to extend its boundaries so as to include a portion of the S.E. 1/4, section 11, and the W. 1/2 of S.W. 1/4, section 12, township 3 N., range 8 W. One-half of this area was platted into lots and blocks, while the remaining portion was unplatted. At the instance of a resident freeholder of the district, the trial court held the city's proceedings void and enjoined the exercise of any municipal authority over the proposed addition, and the city appealed. Two questions only are presented: (1) May a city of this state extend its boundaries so as to include unplatted ground? (2) Has plaintiff invoked an available remedy? 1. It is the rule in this state that a city has only such powers as are expressly conferred or are necessarily implied (City of Helena v. Kent, 32 Mont. 279, 80 P. 258, 4 Ann. Cas. 235; State ex rel. Quintin v. Edwards, 40 Mont. 287, 106 P. 695, 20 Ann. Cas. 239), and whenever there is a fair and reasonable doubt of the existence of a particular power, the doubt will be resolved against the municipality and the exercise of the power withheld ( Davenport v. Kleinschmidt, 6 Mont. 502, 13 P. 249; Helena, etc., Ry. Co. v. City of Helena, 47 Mont. 18, 130 P. 446).

The only warrant for the authority sought to be exercised by the city in this instance is found in section 3214, Revised Codes, which provides:

"That any tracts or parcels of land, which have been or may hereafter be, platted into lots or blocks, streets and alleys, and the map or plat thereof filed in the office of the county clerk and recorder of the county in which the same is situated, and shall be contiguous to any incorporated city or town, may be embraced within the corporate limits thereof, and the boundaries of such city or town extended so as to include the same in the following manner: When in the judgment of any city or town council, expressed by resolution duly and regularly passed and adopted, it will be to the best interest of such city or town, and the inhabitants thereof, and of the inhabitants of any contiguous platted tracts or parcels of land, as aforesaid, that the boundaries of such city or town shall be extended, so as to include the same within the corporate limits thereof, the city or town clerk of such city or town shall forthwith cause to be published in the newspaper, published nearest such platted tracts or parcels of land, at least once a week for two successive weeks, a notice," etc.

It is unnecessary to enter upon any extended discussion of the meaning of this statute. The language does not admit of the application of any rules of construction or interpretation. In terms too plain to admit of doubt, it declares that before any territory is eligible for incorporation in a city by the extension of the city's boundaries to include it, such territory must be (a) platted into lots or blocks, streets, and alleys; (b) a map or plat thereof must be on file with the county clerk and recorder; and (c) the territory must be contiguous to the city's limits. If further evidence were needed that we have accurately expressed the intention of the Legislature, it will be found in the history of the statute itself. Section 3214 is section 1 of an act approved February 21, 1905 (Laws 1905, p. 62), entitled:

"An act to provide for the extension of the boundaries of any incorporated city or town so as to embrace and include contiguous platted tracts or parcels of land, and repealing section 4726 of the Political Code of Montana."

This section was intended as a substitute for section 4726, which it repeals and which provided for the annexation of "abutting and contiguous territory," without reference to whether it was platted or otherwise adapted to city or town purposes. Some of the disagreeable consequences following the exercise of the power apparently conferred by that section, and the incorporation within the exterior boundaries of a city of ground not platted and not intended for use as other property within the city, were illustrated in Farlin v. Hill, 27 Mont. 27, 69 P. 237. When we consider that the Legislature, which substituted section 3214, above, for section 4726, acted in view of the decision in Farlin v. Hill and deliberately changed the descriptive language from "abutting and contiguous territory" to "contiguous platted tracts or parcels of land," to then hold that it was still the intention to permit the corporate limits of a city or town to be extended so as to include unplatted ground, would impeach the intelligence...