State ex rel. City of Minot v. Willis

• Decision Date: 19 November 1908
• Citation: 18 N.D. 76,118 N.W. 820
• Parties: STATE ex rel. CITY OF MINOT et al. v. WILLIS et al.
• Court: North Dakota Supreme Court

18 N.D. 76

118 N.W. 820

STATE ex rel.CITY OF MINOT et al.

v.WILLIS et al.

Supreme Court of North Dakota.

Nov. 19, 1908.

Syllabus by the Court.

Under the facts stated in the opinion, held, that the city of Minot is estopped by its long acquiescence from questioning the validity of the method adopted by the council in attempting to segregate certain territory from its corporate limits.

Appeal from District Court, Ward County; E. B. Goss, Judge.

Action by the State, on the relation of the City of Minot and others, against C. C. C. Willis and others, county commissioners. Judgment for defendants, and plaintiffs appeal. Affirmed.Robert H. Bosard, for appellants. George A. McGee and James Johnson, for respondents.

FISK, J.

This is an appeal from a judgment of the district court of Ward county quashing and dismissing an alternative writ of mandamus theretofore issued on applicationof appellants. It was sought by the writ to compel defendants, as members of the board of county commissioners of Ward county, to reconvene as a board of equalization, and to equalize the assessments of certain real and personal property claimed to be included within the corporate limits of the city of Minot. Whether such property is thus included within such corporate limits is the real controversy between the parties. It seems to be conceded by counsel that the remedy adopted is a proper one. As to this we entertain grave doubts. The territory in dispute having, at least by color of authority, been segregated from the city limits, it would seem that the validity of such act of segregation could be questioned only by a direct attack, and not collaterally, as is attempted to be done in this proceeding. 20 Am. & Eng. Encyc. of Law (2d Ed.) 1155, and cases cited. Furthermore, the writ of mandamus will not issue unless the relator has a clear legal right to the performance of the particular act of which performance is sought to be compelled. A right which is in substantial dispute or regarding which a substantial doubt exists will not be enforced by mandamus. 25 Cyc. 151-153, and cases cited. But, if we disregard these questions of practice, and consider only the merits, we are entirely clear that the conclusion reached by the trial court is sound and hence the judgment must be affirmed.

The facts which are undisputed, and which were found by the trial court, are as follows:

(1) That the city of Minot, as originally incorporated, consisted of all of sections 13, 14, 23, and 24.

(2) That thereafter, and on or about the 15th day of April, 1890, pursuant to the provisions of sections 1115, 1116, Comp. Laws 1887 (Pol. Code), a petition signed by not less than three-fourths of the legal voters and by the owners of not less than three-fourths in value of the property was duly presented to the city council of the city of Minot, praying that the real estate hereinbefore described be set apart from the city of Minot, and a notice of the presentment of such petition was duly given by the petitioners by publication once each week for two successive weeks in the official paper, and that thereafter, on the 5th day of May, 1890, at a meeting of the city council of the city of Minot, the following proceedings were had upon said petition, as appears on page 54 of Book A of the Council Proceedings: “On motion of Alderman Field, seconded by Alderman Seiver, C. E. Gregory was employed to give his advice in regard to letting section fourteen out of the city limits.” That thereafter, and on the 10th day of May, 1890, the following proceedings were had upon said petition as appears on page 55 of Book A of the Council Proceedings: “On motion and upon the call of the yeas and nays, the petition of settlers of section 14, 155, range 83, to be set apart from the city of Minot, was granted, and the city auditor instructed to draw a plat of said section and township, and file the same with the register of deeds.”

(3) That in the year 1903 Ehr's addition to the city of Minot, which is located on said section 14, was assessed by the city of Minot and the taxes were paid. That in the years 1904 and 1906 Ehr's addition to the city of Minot was assessed by the city of Minot, but was stricken off from the tax books of the city of Minot by the county commissioners. That in the years 1907 and 1908 all of said section 14 was assessed by the city of Minot, but said section 14 was stricken off from the assessment list of the city of Minot by the board of county commissioners.

(4) That the south half of said section 14 now consists of the platted additions of North Minot, West Minot, and Ehr's addition.

From these facts the trial court found as conclusions of law that the territory in question was disconnected and excluded from the corporate limits of Minot on May 10, 1890, and ever since has remained disconnected therefrom; also, that from such date to 1907 the said city has acquiesced in such disconnection and exclusion, and is now estopped to question the validity thereof. Appellants' assignment of errors presents three questions for determination. It is contended “(1) that the city could not disconnect or exclude this territory except by ordinance; (2) that estoppel by reason of acquiescence is not available as a defense between the parties to this action; and (3) that a municipality cannot be estopped by acquiescence arising from mere nonaction on the part of its officers or agents in matters in which public interests are concerned.”

Upon the first proposition but little need be said. The statute in force at the date of the attempted exclusion of the territory from the city limits (sections 1114 to 1119 of the Compiled Laws of the late territory of Dakota of 1887) no doubt contemplated that the act of segregating territory from a city should be by ordinance, and there is no doubt that such act was legislative in character. Glaspell v. Jamestown, 11 N. D. 86, 88 N. W. 1023. Whether it can be said that the motion which was carried by the city council was the equivalent of, and in effect, an ordinance within the meaning of said statute, we do not determine, as we choose to place our decision in this case upon the broad principle of...