Winkler v. City of Hastings

• Decision Date: 09 October 1909
• Docket Number: 15,456
• Citation: 122 N.W. 858,85 Neb. 212
• Parties: CHARLES WINKLER, APPELLEE, v. CITY OF HASTINGS, APPELLANT
• Court: Nebraska Supreme Court

122 N.W. 858

85 Neb. 212

CHARLES WINKLER, APPELLEE, v. CITY OF HASTINGS, APPELLANT

No. 15,456

Supreme Court of Nebraska

October 9, 1909

APPEAL from the district court for Adams county: ED L. ADAMS, JUDGE. Reversed and dismissed.

Judgment of the district court reversed, and appeal from action of the mayor and council dismissed.

John M Ragan and W. F. Button, for appellant.

R. A Batty, contra.

ROSE J. REESE, C. J., not sitting.

OPINION

ROSE, J.

Several parcels of plaintiff's agricultural land, each containing more than five acres, were detached from the city of Hastings by decree of the district court, and this is defendant's appeal therefrom.

In severing the land from the municipality the trial court assumed to exercise a power conferred by section 4 of the Hastings charter. Comp. St. 1901, ch. 13, art. III, sec. 4. When the legislature convened in 1903 that section was in this form: "The corporate limits of such city shall remain as heretofore, and the mayor and council may by ordinance include therein all the territory contiguous or adjacent which has been by the act, authority or acquiescence of the owners subdivided into parcels containing not more than five acres, and the mayor and council shall have power, by ordinance to compel the owners of lands so brought within the corporate limits to lay out streets, ways, and alleys to conform and be continuous with the streets, ways and alleys of such city (and they may vacate any public road heretofore established through such land), when necessary to secure regularity in the general system of its public ways." Comp. St. 1901, ch. 13, art. III, sec. 4. To the foregoing statute the following provisions were added by amendment in 1903: "The mayor and council may by ordinance exclude from the corporate limits of such city any tract of land consisting of not less than five acres, which is used exclusively for agricultural or horticultural purposes, and which is now, or hereafter may be included within the corporate limits of such city, upon the application of any owner or owners of any such tract or tracts of land, setting out a full and complete description of such land, and the extent to which it is adjacent to the corporate limits of such city, and praying for its disconnection therefrom, being filed with the city clerk of such city, which application shall be read at large at the next regular meeting of the council of such city, and a day fixed by the mayor and council of such city for a hearing thereon, at not less than ten days from said regular meeting and within reasonable time thereafter. Upon such hearing if by a two-third vote of all the members elected, the council shall determine to disconnect such lands, therefrom, such lands shall thereafter be without the corporate limits of such city. If the council of such city deny the prayer of such application an appeal will lie to the district court of the county in which such city is situated as in cases of appeal from the board of commissioners. Provided further, that the right of such owner or owners of such tract or tracts of lands to make application in the first instance to the mayor and council of such city shall not be lost or waived, because of any delay in making such application." Laws 1903, ch. 18, sec. 1. Comp. St. 1907, ch. 13, art. III, sec. 4.

The original section contained no provision for disconnecting territory, and the amendment supplied that feature. Pursuant to its terms plaintiff asked the mayor and council to sever the lands in question from the corporate limits of Hastings. His application was overruled, and he appealed to the district court, where the relief denied by the city was granted. Defendant in its answer challenged the jurisdiction of the court on the ground that the amendment is unconstitutional, and this is the only question presented here. Briefly stated, the principal objection to the amendment is that by it the legislature attempted to transfer to the district court by appeal legislative power delegated to the city council. The enactment in unambiguous terms confers upon the mayor and council power to detach from the city any five-acre tract used exclusively for agricultural or horticultural purposes. The method of exercising the power delegated is also prescribed...