23 Neb. 426 | Neb. | 1888
In October, 1886, the proper authorities of the city of Wahoo passed a resolution that, “We favor and demand as a matter of right the annexation of the territory contiguous to the city of Wahoo,” etc., and described the territory sought to be annexed. The city thereupon filed a petition in the district court of Saunders county, setting forth the facts required by the statute, and attached an accurate map of the territory sought to be annexed to the said petition, and prayed fora decree of the court annexing the territory set forth in the petition to the city of Wahoo. There were nearly one hundred persons who owned the land sought to be annexed, all of whom were made defendants, and service duly had upon them. The appellants answered the petition, and upon a decree being rendered against them, appealed to this court. There is no bill of exceptions, and the only • question before this court is, whether or not the district court had jurisdiction.
This question is to be determined from the construction
The court in its decree found “ that the city council of the plaintiff has heretofore adopted a resolution to annex the territory described in the petition herein by a two-thirds vote of all the members of said council, and the court further finds that such of said territory as is herein
The appellants contend that the power to annex territory to a city is legislative and not judicial, and if delegated must be given to some body possessing legislative powers and not to a court, citing Shumway v. Bennett, 29 Mich., 452. People v. Carpenter, 24 N. Y., 86. Galesburg v. Hawkinson, 75 Ill., 152. Turner v. Althaus, 6 Neb., 69. The case of Shumway v. Bennett arose under a statute very different from ours, and need not be considered. The case of Galesburg v. Hawkinson is under a similar statute to our own, but we are unable to give our assent to the reasoning of the court in that case.
It will be oonceded that an arbitrary annexation of territory to a city or town, where the benefits to be received by the territory annexed are not considered, can only be accomplished by legislation, either by the legislatúre itself, or by a tribunal clothed with power for that purpose, and that a court under our constitution could not be invested with such legislative power. We do not understand the statute, however, as clothing the courts with the power to legislate in the premises — that is, to determine in the first instance what territory should be annexed. This power is bestowed upon the city council. The evident purpose is to protect the owners of the property from being forcibly brought within the corporation, unless one of two facts is made to appear. First, that the territory, or a part of it, will receive material benefit from its annexation to such corporation — that is, if all the territory sought to be annexed will receive material benefits, then a decree will be entered accordingly ; if but part receives material- benefit, then a decree will be entered only for such part. Second, where justice and equity require such annexation of said territory, or a part thereof, then a decree will be entered according to the facts as found.
Our constitution prohibits special legislation as applied to any particular municipal corporation. The legislature, therefore, cannot, by special act, extend the boundaries of any city or town. This, therefore, must be done by general law, and the most practical way of accomplishing this purpose is to provide by general statute the conditions under which contiguous territory may be attached to such city or town, and to clothe some local tribunal with power to determine, in the first instance, whether such conditions exist. If such local tribunal is convinced of the existence of one or both of the conditions named, and pass a resolution annexing such territory, it must still convince the
Decree affirmed.