85 Neb. 212 | Neb. | 1909
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. Ill, 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
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 cor
In municipal affairs the authority to extend boundaries is derived from the same source as the power to detach territory. In the opinion in City of Wahoo v. Dickinson, 23 Neb. 426, Judge Maxwell said: “It will be conceded 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 legislature 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.” In City of Hastings v. Hansen, 44 Neb. 704, the following appears in an opinion by Commissioner Ragan: “The power to create municipal corporations and the power to enlarge or restrict their boundaries are legislative powers; and it has been doubted if the legislature can pass a valid act giving the courts jurisdiction to disconnect by decree any part of the territory of a municipal corporation of the state merely at the suit of the owner thereof.” The power of the legislature to prescribe the conditions on which municipal boundaries shall be extended or restricted is recognized in the recent case of Bisenius v. City of Randolph, 82 Neb. 520, where the decisions of this court on a kindred subject are discussed by Judge Root.
In the form in which the act amending section 4 of the Hastings charter was passed in 1903, the grant conferring upon the mayor and council authority to detach territory by ordinance was legislative. In attempting to confer the same power upon the district court by direct appeal from the action of the mayor and council, if
The judgment of the district court is reversed, and the appeal from the action of the mayor and council dismissed.
Reversed and dismissed.