State ex rel. Johnson v. Clark

• Decision Date: 02 May 1911
• Citation: 131 N.W. 715,21 N.D. 517
• Parties: STATE ex rel. JOHNSON v. CLARK, Mayor, et al.
• Court: North Dakota Supreme Court

21 N.D. 517

131 N.W. 715

STATE ex rel.JOHNSON

v.CLARK, Mayor, et al.

Supreme Court of North Dakota.

May 2, 1911.

Syllabus by the Court.

The date of the filing with the board of county commissioners of a petition for village incorporation, and not the date of the petition itself, gives such board jurisdiction to act.

Power being given over the same territory to two bodies authorized to act, exclusive jurisdiction vests in the party first acting under the power; hence the city council of Minot, having secured jurisdiction March 18, 1909, had exclusive jurisdiction as against the board of county commissioners to whom a petition was presented for a village incorporation April 7, 1909, by the citizens of North Minot.

The Legislature having designated the method of giving notice of the proceedings of the city council with reference to resolutions extending their boundaries, such method cannot be enlarged or diminished by any act or resolution of the city council. Accordingly, held, that the notice published and posted in this case complied with the statute, and gave the city council jurisdiction to act.

A city council in passing resolutions and proceeding to add outlying territory to the limits of the city calls into motion the exercise of a legislative function.

Under the statute of this state (section 7810, Rev. Codes 1905), a writ of certiorari is not confined to a review of judicial or quasi judicial proceedings, but extends to every case where inferior courts, officers, boards, or tribunals have exceeded their jurisdiction, and there is no writ of error, appeal, nor, in the judgment of the court, any other plain, speedy, and adequate remedy.

Considering the necessities of the people affected by the orders in this proceeding, without deciding whether the matters could be determined by an action in the nature of quo warranto, it is not certain that that remedy would be speedy and adequate.

A citizen and a taxpayer of the territory known as North Minot is a party beneficially interested under the provisions of section 7811, Rev. Codes 1905, which requires that “the application must be made and filed by the party beneficially interested,” following the rule laid down in State ex rel. v. Carey, 2 N. D. 40, 49 N. W. 164. Hence this proceeding was properly brought by and entitled in the name of the State ex rel. I. A. Johnson, who was a citizen, taxpayer, and officer of the village of North Minot.

An appellate tribunal cannot go outside of the record as settled by the lower court, and be guided by statements of counsel in his brief, which have not been incorporated into and made a part of the record by such lower court.

Additional Syllabus by Editorial Staff.

Under Rev. Codes 1905, § 2826, providing that the resolution of the city council authorized by the preceding section to extend the city limits shall be published in the official newspaper of the city twice, once each week for two successive weeks, and printed or typewritten copies shall be posted in the territory proposed to be annexed, where the resolution calls for publication for three successive weeks, the fact that the notice was published in the first instance only twice, and that the notices were not posted till over three weeks after the first publication, did not deprive the city council of jurisdiction of the proceedings.

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

Application by the State, on the relation of I. A. Johnson, as relator and one of the trustees and officers of the Village of North Minot, and as a resident and property owner and taxpayer of said corporation, and as a property owner and taxpayer of Harrison township, against Sam H. Clark, Mayor of the City of Minot, and others, and the City of Minot, for writ of certiorari. From an order and judgment setting aside an action of the city council of Minot in attaching certain territory, defendants appeal. Reversed, and petition dismissed.

R. H. Bosard and G. W. Twiford, for appellants. James Johnson, for respondent.

POLLOCK, Special Judge.

The matters in controversy in this proceeding were instituted in the lower court by the issuance of a writ of certiorari. The record discloses the following facts:

On the 18th day of March, 1909, the city council of the city of Minot, N. D., passed a certain resolution extending the limits of said city to include what is now known as North Minot. In said resolution, among other things, we find the following: “Whereas, the city of Minot is a city incorporated under the general laws of the state of North Dakota, and has more than five thousand inhabitants; and whereas, the present territory included in the city limits thereof contains two thousand acres; and whereas, there is adjacent to said city of Minot a tract of land containing about two hundred acres, of which more than two thirds has been heretofore platted into lots and blocks: Now, therefore, be it resolved by the city council of the city of Minot, that the boundaries of said city of Minot, North Dakota, be extended so as to include and incorporate within the city limits of the city of Minot the following described land, the boundaries of which territory proposed to be incorporated are as follows.” (Then follows a description of the property.) And it was further resolved: “That this resolution be published in the Ward County Independent, the official paper of the city of Minot, once each week for two successive weeks.” The record shows that this resolution was passed and adopted on the 18th day of March, 1909, signed by Sam H. Clark, mayor, and duly attested by George L. Morrow, city auditor. The validity of this order and the proceedings had thereunder are now before the court for review.

The record further shows that the resolution above referred to was published in the official paper of said city of Minot on the 18th and 25th days of March, but at that time no notices were posted. Apparently, from examination of the law and the acts of the defendants, there was some controversy as to whether the notices should have been published two or three times. In any event, the resolution was again published in the official paper of said city, in every copy of each issue of said newspaper, for a period of three consecutive weeks, to wit, April 15, 22, and 29, 1909. The record further shows that on the 10th day of April, 1909, there was posted in five public places in the city of Minot a typewritten copy of the above resolution. On the 3d day of April, 1909, there was filed with the city council a remonstrance from residents and property owners residing upon the property described in said resolution of March 18th. This remonstrance was signed by 42 persons residing within the limits of the territory sought to be annexed. Whereupon the city council fixed Monday, April 12th, at 8 o'clock p. m. as a time for hearing the parties who desired to protest. At said hearing it was discovered that the resolution had only been published twice, and the mayor informed the citizens of North Minot and Harrison township who were protesting that no further proceedings would be had at that time, and that they would be notified when further action would be had; that thereafter the three publications, on April 15th, 22d, and 29th, took place and the notices were posted as aforesaid on April 10th. Whereupon another protest was filed by the parties in interest, and they were cited to appear before the city council on May 18, 1909, at which time the citizens of North Minot and Harrison township, being property owners of the land described in said resolution, appeared before said city council and an adjournment was again had until May 21st, at which time another adjournment took place until May 28th, when the objection of the taxpayers and protestants to said annexation was heard before said city council.

Among other things, the following objections were noted: That on April 7, 1909, a petition which was dated March 5, 1909, was presented to the board of county commissioners of Ward county by more than one-third of the legal voters residing within the territory known as North Minot for the incorporation of said territory into a village to be known as North Minot, and that on April 9, 1909, such proceedings were had by the said board of county commissioners, having had the same under consideration, which finally resulted in an election being held in said North Minot on April 17th to permit the qualified electors to vote upon the question of incorporation, and that at such election 45 ballots were cast, 43 thereof being in favor of and 2 against such incorporation. That at a meeting of the said board of county commissioners on April 27, 1909, they passed a resolution in which they referred to the petition filed April 7th and the proceedings had thereunder, the election and the result thereof, and made a final order as follows: “Therefore, the board of county commissioners of Ward county does hereby declare and order that the said territory has been and it is incorporated as a village by the name of North Minot.” At the several hearings had before the city council of Minot the protestants appeared, objected to the proceedings, and filed their exceptions to the rulings made by the city council. The final order of the city council of Minot was made by a resolution which was dated May 29, 1909, in which it was resolved, among other things: “That the limits of said city of Minot be, and the same are hereby extended as follows: [Here follows a description of the property.] And that said territory hereinbefore described, and the whole thereof, is a part of the city of Minot and within the corporate limits thereof.” Same was passed and adopted by eight aldermen present; there being absent and not voting four. It will thus be seen that the original action of the city council was dated March 18th, while the final order therein was not made until May 29th; that the original application to the board of county...