Pyle v. City of Shreveport

The plaintiffs, one a citizen and taxpayer of the City of Shreveport and the others of the two areas involved in this litigation, are appealing from a judgment of the lower court dismissing their suit to have Municipal Ordinance No. 158, (adopted pursuant to the provisions of Act No. 315 of 1946) wherein certain territories in the Country Club and Werner Park sections were sought to be annexed to and made a part of the city, annulled and vacated and the proposed extension of the city limits to include these areas denied. It appears that a petition, signed according to the certificate of the assessor by 25% in number of the resident property owners and by 25% in the valuation of their property in the Lonoke, Parkhurst, Werner Park, and Morningside subdivisions (hereafter referred to as the Werner Park area), and a like petition signed by the required percentages in the Country Club Heights subdivision (hereafter referred to as the Country Club area) seeking to have these two areas included in the city's corporate limits were filed with the public authorities of the City of Shreveport on September 23, 1947. On November 12 following, an opposition was filed by a number of the residents of the so-called Werner Park area who opposed the annexation of this area or any part of it. The city, however, on December 9, through its council, introduced an ordinance that was, on that day, read for the first time and notice thereof was duly published in the city's official *Page 260 journal calling the public's attention to the fact that it would be called up for final passage on December 23. On that day, after a public hearing had been held so that those so desiring might freely express their views, the city formally adopted the ordinance as Ordinance No. 158 by unanimous vote. In addition to alleging that this ordinance is unreasonable and discriminatory, the plaintiffs, as a basis for its nullity, assigned a number of irregularities connected with its adoption. Most of these have apparently been abandoned since in this court they are urging only four, i. e., (1) that the ordinance was adopted before public notice was given as required in Section 2; (2) that the city sought in this one ordinance to annex two non-contiguous areas; (3) that the petitions do not conform to the requirements set out in Section 2 of the act since the names thereto affixed are to be found in numerous petitions instead of in only one; and (4) that the assessor used the 1946 rolls in attesting to the number of owners and valuation represented in the petition instead of using the 1947 rolls and did not take into consideration the changes in ownership after January 1, 1947. By referring to a map to be found in the record that is reproduced herein below, it will be revealed that the two areas sought to be annexed to the city are separate and distinct, although each is contiguous to the city limits; no one part of either touches the other. *Page 261 [EDITORS' NOTE: FIGURE IS ELECTRONICALLY NON-TRANSFERRABLE.] *Page 262 [EDITORS' NOTE: FIGURE IS ELECTRONICALLY NON-TRANSFERRABLE.] *Page 263 The intervening area is largely commercial and industrial in character. The Werner Park area, to the lower right of the map, is well developed urban property that is almost entirely equipped with sewerage and water that has been installed and streets that have been paved at the expense of those living therein; whereas the Country Club area, lying in the upper left of the map, is a very sparsely developed section that is more rural in character, having no sewerage system and only an inadequate water supply that is piped to the residents living there through the country club facilities. While this area was at one time laid out for residential development, with properly dedicated streets and roads, large portions thereof have never been developed and, during the intervening years, weeds and grass have grown over the passageways. As adopted by the ordinance, the large tract of land blacked-out and lying in the center of the Country Club area, used by the Shreveport Country Club as a golf course, is excluded. Also, it is to be noticed that the extreme left boundary of this area is made jagged and irregular by the elimination therefrom of a number of lots that have apparently been left out deliberately. "It is elementary that municipal corporations are creatures of the state, established by the legislature for the purpose of administering local affairs of government. Such powers as these corporations have, as well as the limits of the territory *Page 264 they are to govern, are all matters that are entirely within the province of the legislature, and so long as there is no constitutional provision restricting the legislature's authority in this respect, that body may enlarge or diminish the territory of these corporations, consolidate one with another in whole or in part, and even terminate their existence at will. It may also legally delegate these powers to the municipal authorities." Edwards v. Town of Ponchatoula, 213 La. 116, 34 So.2d 394, 397. See, also, Shirk v. Lancaster City, 313 Pa. 158, 169 A. 557,90 A.L.R. 688; 38 Am.Jur. 635, Section 18, and the annotation to be found at 64 A.L.R. 1335. Generally speaking, however, when the legislature does delegate its power to the municipal authorities, strict compliance with the procedure prescribed in the statute is essential to a valid alteration of the municipality's corporate limits. Layton v. Mayor of Monroe, 50 La.Ann. 121, 23 So. 99; Dees v. City of Lake Charles, 50 La.Ann. 356, 23 So. 382; Pittsburgh, C., C. St. L. R. Co. v. Anderson,176 Ind. 16, 95 N.E. 363; Weeks v. Hetland, 52 N.D. 351,202 N.W. 807; Posey v. Paxton, 201 Ark. 825, 147 S.W.2d 39; and other authorities cited at 64 A.L.R. 1341. See, also, 43 C.J. 122, Sections 81 and 82. In the Pittsburgh case it was said that "The municipal authorities can in no case alter the boundaries unless the power so to do is conferred upon them by the Legislature; such power, when conferred, must be exercised under the circumstances and in *Page 265 the manner prescribed." In the Hetland case the court held that the power of annexation as conferred on the municipalities by statute is arbitrary and extraordinary, and that when such power is exercised the statute must be strictly complied with. It was further held that all doubtful claims of power by the municipal corporation, or any doubt or ambiguity in the terms used by the legislature, are to be resolved against the corporation. The legislature of 1946 in delegating to municipal corporations the power to contract or expand their corporate limits in its Act No. 315 specifically declared that "the limits and boundaries of existing incorporated municipalities shall remain as now established but may be enlarged or contracted by ordinance of the governing body as hereinafter provided" (Section 1), but that "No ordinance enlarging the boundaries of a municipality shall be valid unless prior to the adoption thereof a petition has been presented to the governing body of the municipality containing the written assent of 25% in number of the resident property owned in said territory as well as 25% in value of the property with the area proposed to be included in the corporate limits according to the certificate of the Parish Assessor." Section 2. In this same section is contained the provision that "Anyone desiring to be heard with reference to said proposed ordinance shall notify the clerk or secretary of the municipality in writing and the governing authorities before adopting *Page 266 any ordinance, shall grant such hearing." In Section 4 any interested citizen of the municipality or territory proposed to be annexed thereto is granted the right, within 30 days after the promulgation of the ordinance, to contest the proposed extension or contraction by filing suit in the district court, where the question "shall be whether said proposed extension is reasonable." In Section 8 it is further declared that "Where the boundaries of a municipality have been enlarged or contracted the ordinance with reference thereto must define with certainty and precision the territory which it is proposed to include in or to exclude from the corporate limits as the case may be and said ordinance must also define the entire boundary as changed." Clearly this law contemplates that no territory can be annexed to a municipality unless previous thereto it has been requested to make such annexation in a petition duly certified by the assessor as having been assented to by one-fourth in number and amount of the property taxpayers within the area to be annexed, and regardless whether the area sought to be included is composed of two separate and distinct and non-contiguous parts, as is the case here, that may be annexed by an ordinance adopted upon a single petition, a question upon which we express no opinion, we do say that the citizens of two separate areas cannot by two separate petitions, each seeking to have its own respective area annexed without reference to the other, merge the two areas for annexation *Page 267 in one ordinance. This, we think, is not only at variance with the letter and spirit of the law, but is also sufficient in itself to render the ordinance unreasonable. Certainly if the inclusion of one of the areas were held to be unreasonable, of necessity the ordinance would be annulled, for we have no way of determining whether the governing authorities of the city would have adopted the ordinance without the inclusion of both. For the reasons assigned, the judgment appealed from is annulled and set aside and it is now ordered, adjudged, and decreed that Ordinance No. 158 of 1947 of the City of Shreveport is null and void and of no effect, at the cost of the defendant. HAMITER, J., dissents and assigns written reasons. McCALEB, J., concurs in the decree but doubts that the case is within our appellate jurisdiction. O'NIELL, C. J., takes no part.