State ex rel. Danielson v. Village of Mound

• Decision Date: 20 July 1951
• Docket Number: No. 35197,35197
• Citation: 48 N.W.2d 855,234 Minn. 531
• Court: Minnesota Supreme Court
• Parties: STATE ex rel. DANIELSON et al. v. VILLAGE OF MOUND et al.

Page 855

48 N.W.2d 855

234 Minn. 531

STATE ex rel. DANIELSON et al. v. VILLAGE OF MOUND et al.

No. 35197.

Supreme Court of Minnesota.

July 20, 1951.

Syllabus by the Court.

1. Where the issuance of a writ of quo warranto is sought by a private individual with the consent of the attorney general, such individual must petition the court for leave to file an information For a writ of quo warranto.

2. The granting or withholding of leave to file an information For a writ of quo warranto at the instance of a private individual, with or without the consent of the attorney general, rests in the sound discretion of the court.

3. When the supreme court permits an information For a writ of quo warranto to be filed And has issued the writ, the court is deemed to have exercised its discretionary power favorably for the relator, and it is immaterial that relator failed to petition the court for leave to file the information upon which the writ was issued.

4. A private person, with the consent of the attorney general and with leave of the supreme court, may file an information For a writ of quo warranto to contest an Annexation proceeding by a municipal corporation, and, if successful, is entitled to the issuance of a writ of ouster with respect to the territory sought to be annexed.

5. In the absence of statutory provisions or rules of practice to the contrary, objections to parties in quo warranto proceedings should be taken at the time and in the same manner as prescribed for such objections in civil proceedings generally.

6. A defect of parties, pursuant to M.S.A. § 544.03, subd. 1(4), means only the failure to join those who should have been included and not the joinder of improper parties.

7. Quo warranto proceedings instituted to challenge an annexation by a village must be brought against the municipal corporation and its officers and council members--and not against the signers of the petition for annexation.

8. The misjoinder of defendants in a quo warranto proceeding is an irregularity which may be corrected at any time before or after judgment of ouster is entered by striking out the name of the party improperly joined.

9. Until an actual usurpation has occurred, the remedy of quo warranto has no application and may not therefore be used to question the validity of a pending petition for annexation which has not been acted upon by the village council.

10. Pursuant to § 412.041, subd. 1, territory to be added to an existing village by annexation is conditioned as properly to be subjected to village government only if it lies in such close proximity to the village as to both abut thereon and as to be suburban in its character, and to be so limited in area and to have such a natural connection, as well as a unity or community of interests, with the village that the entire area, taken as a whole, will naturally and reasonably be adaptable to the maintenance of village government whereby, in addition to other municipal functions, there may be a common and feasible provision for, and enjoyment of, the benefits of the usual municipal conveniences such as water, sanitation, gas, electricity, police and fire protection and similar services.

11. As long as the legislative function of annexation is exercised by the village within the scope of its delegated powers, and in a reasonable manner, as distinguished from one that is arbitrary or unreasonable, this court will not interfere even though the wisdom of the annexation may be subject to question as a matter of policy.

12. In providing by § 412.041, subd. 1, that territory to be annexed to a village must abut upon the village, the legislature intended that the abutting should not only be to such an extent, but also of such a Character, that it will so condition the territory as properly to subject it to the village government.

Writ of ouster to issue to village of Mound and to its officers and council members as to territory described in its annexation ordinances of October 1, 1949, and October 6, 1949; writ discharged as to remaining respondents.

Stinchfield, Mackall, Crounse & Moore, Minneapolis, (Perry R. Moore and Robert W. Dygert, Minneapolis, of counsel), for relators.

Herbert Wolner, Spring Park, William F. Kelly, Excelsior, Lewis L Anderson, St. Paul, for respondents.

Francis E. Colgrove, Minneapolis, filed a brief amicus curiae on behalf of the Town of Orono.

MATSON, Justice.

Upon the relation of private parties, with the consent of the attorney general, this court issued a writ of quo warranto to test the validity of the annexation of certain territory by the village of Mound in Hennepin county.

We are concerned with three areas in the immediate vicinity of Lake Minnetonka: (1) The village of Mound; (2) the unincorporated community known as Spring Park, which lies east of the village of Mound (hereinafter called Spring Park); and (3) the annexation territory herein consisting of approximately 37 acres of the industrial district of Spring Park plus 7.65 acres in the form of a 100-foot wide railroad right of way which extends about five-eights of a mile westward from such Spring Park industrial tract until it connects with the village of Mound. In other words, the 37-acre industrial portion of the area purported to have been annexed has no connection with the territory proper of the village of Mound other than by the railroad right of way which has been included in the annexation area. There is no residential dwelling on any part of the annexed territory.

Relators, who reside in Spring Park but outside the annexation territory above described, on September 6, 1949, signed a petition for the incorporation of the village of Spring Park to consist of approximately 82 1/2 acres--inclusive of the 37-acre industrial district involved in these proceedings. This petition, after the county commissioners had approved it and ordered an election to determine the matter, was, on September 27, 1949, in an action commenced by two of the corporate respondents herein, dismissed by the district court as legally defective and void, but without prejudice to the right to file another petition.

On October 1, 1949, before relators had filed another petition for the incorporation of Spring Park, the four corporate respondents herein, namely Minnetonka Properties, Inc., the J. R. Clark Company, Streater Industries, Inc.--owners of industrial plants in the 37-acre industrial district of Spring Park--and the Great Northern Railway Company--as owner and user of the 5/8-mile railroad right of way--petitioned the village of Mound for annexation of such industrial district and right of way. By their petition they alleged (1) that they were the sole owners of all property in said territory; (2) that the territory was so conditioned as properly to be subjected to the village government of Mound; and (3) that said territory abutted on the village. On the same day, the village council of Mound enacted an ordinance declaring the territory to be annexed to the village. On October 3, 1949, a certified copy of the ordinance was filed with the county auditor. For the purpose of correcting certain inaccuracies in the description of the annexed territory, the Mound village council on October 6, 1949, adopted another ordinance amending and reenacting the prior annexation ordinance of October 1, 1949. The amended ordinance was filed with the county auditor on October 21, 1949.

Prior to the adoption of such amendatory ordinance by the village council of Mound, relators on October 3, 1949, submitted to the board of county commissioners of Hennepin county a new petition for the incorporation of Spring Park (inclusive of the 37-acre industrial area). No action on this petition was taken by the county board by reason of the conflicting annexation proceedings of the village of Mound.

On January 28, 1950, this court, upon an information filed by relators with the consent of the attorney general, issued a writ of quo warranto directing the village of Mound, its officers, and the corporate respondents herein to show by what warrant said village and its officers assumed to hold and exercise jurisdiction over the territory purportedly annexed on or about October 1, 1949, and on October 6, 1949. Thereafter a referee was appointed pursuant to M.S.A. § 546.33 to take testimony and to make findings of fact and conclusions of law with reference to all issues.

The referee made and filed his findings of fact and conclusions of law that the petition of October 1, 1949, for annexation of the industrial area and 'right-of-way' strip, the ordinance adopted October 1, 1949, and the ordinance adopted October 6, 1949, were illegal and void, and that therefore relators were entitled to a writ of ouster against the village of Mound and the members of its council and its officers to prevent them from exercising any authority or jurisdiction over the territory described in the above ordinance.

We are concerned with these issues:

(1) Does a private citizen, with the consent of the attorney general, have the right to use the writ of quo warranto to test the legality of annexation proceedings?

(2) Is a private corporation, as a signatory of a petition for annexation, a proper party respondent in quo warranto proceedings brought to challenge the validity of an annexation?

(3) Does a writ of quo warranto lie prior to the time a village has acted upon a petition for annexation?

(4) Where the territory to be annexed, and the annexing village, do not abut upon each other in any other manner than that they are located at opposite ends of an actually used and occupied railroad right of way--which is 100 feet wide and about five-eighths of a mile long and which is included as a part of the annexed territory--is such territory, pursuant to § 412.041, subd. 1, So conditioned as properly to be subjected to village government?

1--2--3. There has been considerable confusion as to how and when a private...