Town of Fairbanks, Alaska, v. Barrack
| Decision Date | 07 August 1922 |
| Docket Number | 3834. |
| Parties | TOWN OF FAIRBANKS, ALASKA, v. BARRACK et al. [1] |
| Court | U.S. Court of Appeals — Ninth Circuit |
L. R Gillette, of Fairbanks, Alaska, and Pillsbury, Madison, & Sutro, of San Francisco, Cal. (Alfred Sutro and Eugene M Prince, both of San Francisco, Cal., of counsel), for appellant.
Morton E. Stevens, of Fairbanks, Alaska, for appellees.
Before MORROW and HUNT, Circuit Judges, and BEAN, District Judge.
This is an appeal by the town of Fairbanks, Alaska, from a decree of the District Court for Alaska, setting aside an order of the United States commissioner and ex officio recorder for Fairbanks precinct, for annexation of certain territory contiguous to the town of Fairbanks, and dismissing the petition of the town for annexation. It appearing that the value of the subject-matter exceeds $500, the motion to dismiss the appeal is denied.
In its petition filed with the United States commissioner, after averring jurisdictional matters, the town set up that the territory sought to be annexed had been receiving such benefits as the school system, fire protection, and telephone service without bearing any portion of the cost, and that the interests of all concerned would be served by the proposed annexation. Appellees and others, residents of Garden Island and the owners of substantial property interests thereon filed a notice of protest to the annexation, specifying objections to the jurisdiction of the commissioner and to the validity of chapter 47 of the laws of Alaska of 1921. The commissioner overruled the objections to his jurisdiction, and found that the necessary notice had been given as required by law; that the annexation would be to the interest of the town of Fairbanks, and would cause no manifest injury to the real estate and property of any person; and that annexation as prayed for should be had. The objectors appealed to the District Court, which held that the order of annexation was invalid, on the ground that chapter 47, Laws of Alaska of 1921, is violative of the Organic Act (Comp. St. Sec. 3528 et seq.), in that it attempts to confer equitable jurisdiction upon commissioners and ex officio justices of the peace.
Chapter 47, Laws of Alaska, provides for the annexation of territory to an incorporated town, and provides how any territory not heretofore incorporated, lying contiguous to any town, may become annexed under the provisions of the act. By section 4, whenever the common council of any town shall desire to enlarge the limits thereof by annexing territory contiguous thereto, they shall present a petition 'to the commissioner and ex officio recorder of the recording district' in which the town is situated, setting forth by metes and bounds the territory sought to be annexed, and praying that said territory be annexed. Notice of hearing of said petition must be given as required by the act, and if upon a hearing the commissioner is satisfied that due and proper notice has been given as required, and that the annexation will be to the interests of the town, and will cause 'no manifest injury' to the persons owning real estate in the territory sought to be annexed, he shall so find, and shall make an order declaring such territory a part of the corporate limits 'of such town, and shall cause such order to be recorded, and the territory so ordered to be annexed shall thereupon become part of such * * *town." Section 8 provides that the common council, or trustees, or any person 'feeling himself aggrieved by the order' of such commissioner, may appeal from such order to the United States District Court in the manner provided for appeals from the justice's court in civil cases, by filing a good and sufficient bond conditioned for the payment of all costs of the hearing.
Two principal grounds are assigned as error: (1) That it does not appear that appellees had any remedial interest in the annexation proceedings, which would support their appeal to the District Court from the commissioner's order; and (2) that the District Court erred in concluding that chapter 47 confers equitable jurisdiction on justices of the peace.
We are of opinion that in their primary proceedings the objectors made a sufficient showing to invoke the jurisdiction of the commissioner and ex officio recorder. In their notice of protest they set forth that each was over the age of 21 years and the owner of substantial property interests in that portion of land sought to be annexed in the proceedings, and that for various reasons, which were stated at length, the commissioner was without jurisdiction in the premises. We believe that the filing of the protest was an appearance, and that the objections and protest constituted a substantial compliance with the statute. We hold, too, that the objectors were entitled to appeal from the order of the commissioner, provided they followed the manner prescribed for appeals from justice's courts in civil cases. The manner of appealing from a justice's court to the District Court is covered by sections 1828, 1829, 1830, 1834, 1835, and 1836, Compiled Laws of Alaska. In compliance with the sections cited, objectors gave notice of appeal and furnished a bond. A transcript was then filed in the District Court, and the appeal was perfected (section 1835), and the matter stood for hearing. It follows that the District Court properly overruled the motion to dismiss the appeal of the objectors.
This brings us to the question whether the court was correct in holding that chapter 47, supra, contravenes the provisions of the Organic Act of Alaska, and amendments thereto, and is therefore invalid. It is our opinion that the District Court erred in regarding the functions of the commissioner in the premises as 'purely judicial' and on the equity side of the court. By section 4 of the Organic Act for Alaska (37 Stat. 513; Comp. St. Sec. 3531), the legislative powers and authority are vested in a Legislature, and by section 3536 Comp. St., the legislative power extends to all rightful subjects of legislation not inconsistent with the Constitution and laws of the United States. In finding whether the proper notice of proposed annexation has been given and whether upon a hearing such proposed enlargement by annexation will be to the interest of the town, and will cause no 'manifest injury' to...
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