State ex rel. Bibb v. City of Reno

• Decision Date: 17 March 1947
• Docket Number: 3476.
• Citation: 178 P.2d 366,64 Nev. 127
• Parties: STATE ex rel. BIBB et al. v. CITY OF RENO et al.
• Court: Nevada Supreme Court

178 P.2d 366

64 Nev. 127

STATE ex rel. BIBB et al. v. CITY OF RENO et al.

No. 3476.

Supreme Court of Nevada

March 17, 1947

Quo warranto proceeding by the State of Nevada, upon the relation of Evelyn R. and John D. Bibb, wife and husband, and others against the City of Reno, a municipal corporation, Harry E Stewart, Mayor, and others, councilmen of the city, attacking a Reno city ordinance annexing agricultural land owned by relators, wherein respondents filed a general demurrer.

Demurrer overruled.

Springmeyer & Thompson, of Reno, for relators.

Emerson J. Wilson, City Atty., and Louis V. Skinner, Asst. City Atty., both of Reno, for respondents.

EATHER, Chief Justice.

Relators by quo warranto, attack a Reno city ordinance annexing about 50 acres of agricultural land owned by relators. Respondents mayor and councilmen, filed a general demurrer. In substance, the complaint, map and other exhibits show:

The annexation is a misuse of the city's franchise, is arbitrary, unjust, unreasonable, unnecessary, and a taking of property without due process, for the following reasons:

Annexation would result in substantial depreciation in value of the lands, now used for agriculture, ranching and fruit growing; restrictive city ordinances in effect or which could be passed would prevent the present uses of the lands and cause a substantial loss of income to relators.

Annexation would impose heawvy taxes without benefit to relators; taxes would be the only benefit to the city; the lands are not needed for city purposes or for city growth; the many vacant lots and acres of unplotted land now in the city would provide homes and places of business for about double the city's present population of some 25,000; proposed annexation would make Reno a sprawling, irregularly shaped area, partly city and partly country, unable to satisfy the needs of the people.

The lands are not platted or subdivided, but are irrigated meadows, brush, orchards and gardens, partly in a canyon, separated from Reno by suburban areas, and distant some two miles from Reno's business center; the city is not injured by the present uses of the lands; county land use and land zoning permit relators to farm and ranch the lands; city sidewalks and street lights would be detrimental to the lands.

Only four families live on the lands; no public places are on or near the property; the county peace officers and fire equipment are efficient and sufficient; no city police or fire protection is needed; relators pay irrigation district water taxes and ditch expenses for which Reno residents not within the district are not liable.

Reno does not own or operate water, light, power, fuel or telephone systems, relators receive such services from private concerns; there are district schools for county and city areas; there are difficulties between county and city management and maintenance of highways half in the county and half in the city; annexation would seriously affect the sewage disposal plans because the county requires its present area to finance the project; over protest, the city recently has annexed large areas but does not annex the undesirable and heavily populated airport area which is in great need of city facilities; no planning commission has recommended annexation of relators' lands; annexation would destroy the charm of the country and suburban area, and make the community less attractive.

The attempted annexation is based upon the amended Reno charter, (Stats.1945, p. 429, c. 223, sec 10.505), as follows:

'The city council shall have the power to extend the exterior boundaries or limits of the city so as to annex or include therein additional lands with the tenements, property, and inhabitants thereof, by the passage of an ordinance declaring said territory to be annexed; provided, that the majority of the property owners of the district proposed to be annexed first petition the city council to annex said territory; and provided further, that when the city council of the city of Reno deems it necessary to annex additional territory to said city of Reno, and the inhabitants of said territory have not petitioned for annexation, that the said city council shall pass a resolution declaring its intention to annex said territory, describing said territory to be annexed, and ordering a plat of the same to be filed in the office of the city clerk of said city, and notice to be given as to the time when the city council shall hear objections to the annexation of said territory on the part of the freeholders residing therein, and the residents of said city; said notice to be published one week in a newspaper in said city of Reno, and to be posted in at least three public places in said district to be annexed, and to be mailed to all known freeholders in said district sought to be annexed, citing them to appear and show cause, on the date named, why said land should not be annexed to said city, and giving the reasons why the said land should be annexed to said city; and provided further, that after said hearing if a majority of the freeholders residing in said territory sought to be annexed do not protest, the said city council shall pass an ordinance declaring said property to be annexed to, and be a part of, the said city of Reno, and shall order a plat showing said territory to be recorded in the office of the county recorder of the county of Washoe, and said territory shall then be a part of the said city of Reno and subject to all taxes and laws thereof; and providing further, that in the event a majority of the freeholders in said territory sought to be annexed protest against the annexation of said territory, that it will require a five-sixth (5/6) vote of the council to pass said ordinance annexing said territory to the said city of Reno.'

The annexation statute is a political declaration by the legislature. We do not pass upon its policy or wisdom. Respondents argue that we cannot construe the statute, and they insist that the city has an absolute power to annex. Relators say they have the right to attack the action of the city by a court proceeding, and that the court must construe the statute in order to determine whether the city has misapplied its annexation powers.

Chief Justice Shaw, famous Massachusetts jurist, said: 'It is necessary to put extreme cases to test a principle.' We will apply a test: Could Reno annex all farms, ranches and mines in the county? Could it annex a narrow strip to and then include Lake Tahoe? Or could it hurdle a hundred miles and annex a gypsum plant in northern Washoe County? The test shows respondents' position is unsound. It is well settled that a court may construe an annexation statute and determine whether it has been misapplied by a city council. An annexation which is arbitrary, unreasonable, unjust and unnecessary will be held invalid. McQuillan on Municipal Corporations, 2nd ed. revised vol. 1, secs. 291, 293.

The courts also set aside as invalid legislative acts which directly fix arbitrary and unreasonable city boundaries, or which deprive landowners of property rights protected by the constitution. State ex rel. Davis v. Stuart, 97 Fla. 69, 120 So. 335, 64 A.L.R. 1307; State ex rel. Davis v. City of Pompano, 113 Fla. 246, 151 So. 485; Searle v. Yensen, 118 Neb. 835, 226 N.W. 464, 69 A.L.R. 257; People v. Daniels, 6 Utah 288, 22 P. 159, 5 L.R.A. 444; Morford v. Unger, 8 Iowa 82; City of Orlando v. Orlando Water & Light Co., 50 Fla. 207, 39 So. 532; City of Denver v. Coulehan, 20 Colo. 471, 39 P. 425, 27 L.R.A. 751; Langworthy v. Dubuque, 13 Iowa 86; Fulton v. City of Davenport, 17 Iowa 404; Deeds v. Sanborn, 26 Iowa 419; 37 Am.Jur. sec. 29, p. 647.

Of course if a direct legislative act may be set aside by a court, annexation by a city council which does not rise to the dignity of a legislative act, may be set aside. Annexation by a city is an administrative act delegated by the legislature. Like the administrative acts of the public service commission or of the highway engineer or of the water engineer, the administrative act of a city in annexation is subject to court review when it is alleged to be arbitrary, unreasonable, unjust, unnecessary or in deprivation of property rights. The law is well stated in Stoltman v. City of Clayton, 205 Mo.App. 568, 226 S.W. 315, at page 320, as follows:

'The validity of the extension of municipal boundary lines may be inquired into by the state by an action in the nature of quo warranto or other direct proceeding. * * * And that the extension of the boundary lines of a municipal corporation does not rise to the dignity of an original act of incorporation, see State ex rel. v. Birch, 186 Mo. 205, 220, 85 S.W. 361; Warren v. Barber Asphalt Paving Co., 115 Mo. 572, 22 S.W. 490; Parker v. Zeisler, 73 Mo.App. 537, 541. * * * such an ordinance is void if unreasonable and its unreasonableness is subject to judicial inquiry in which will be applied the same test as to other corporate legislation. * * *'

If there is no petition by landowners, Reno may annex 'when the city council deems it necessary to annex', gives notice of hearing by publication, posting and mailing, citing freeholders to show cause why the lands should not be annexed. The notice must give the 'reasons why the land should be annexed.' If a majority of the freeholders protest, a 5/6 vote of the council is required. These steps show that the city does not have absolute or plenary power to annex. As has been said, annexation by the city is an administrative act. The finding that the council 'deems it necessary to annex', the giving of notices, the...