School District No. 30 v. School District

Duffie, 0. This action was brought to recover from the defendant a portion of the fines and licenses collected by the city of Grand Island during the years 1893, 1894 and 1895.- The petition alleges that part of the territory comprising school district No. 30 lies within the corporate limits of the city of Grand Island, and that it is entitled to recover its proportionate share of fines and license money collected by said city, which have all been paid to the defendant. A demurrer to the petition was sustained and the plaintiff asks us to review this ruling. State v. Brodboll, 28 Nebr., 254, and State v. White, 29 Nebr., 288, are both authority to the effect that where a part of two or more school districts is embraced within [45] the corporate limits of a city or village, they are entitled to a division of the fines and license money collected by such municipality. The petition in this case alleges that a part of plaintiff’s territory was included within the corporate limits of the city of Grand Island by an ordinance passed by the city council in February, 1888. An examination of sections 95 and 99, chapter 14, Compiled Statutes, 1887, will disclose that there were, at that time, but two methods of attaching contiguous territory to a city of the second class. The first method required a request for annexation by a majority of the inhabitants of the territory proposed to be annexed, and an affirmative vote of a majority of all the members of the city council in favor of said annexation. The second was by proceedings in the district court. It is noAvhere alleged in the petition that either of these methods was pursued by the city of Grand Island in annexing a part of the plaintiff’s territory. On the contrary, Avhat is claimed to have that effect is set out in the petition and is shoAvn to be an ordinance which merely defines the corporate limits of the city. This ordinance does not, upon its face, purport to annex any territory not theretofore included within the boundaries of the city. If the proceedings alleged in the petition are the only proceedings undertaken to make a part of plaintiff’s territory a part of the city of Grand Island, it was wholly ineffectual; and while the city and the inhabitants of so much of plaintiff’s territory as is within the limits of the city as defined by said ordinance might be estopped, as between themselves, from questioning their relation on account of matters alleged in the petition, such estoppel could not be urged' against a third person who had done nothing to recognize the relation which plaintiff claims existed between this territory and the city. We are of the opinion that the district court Avas right in sustaining the demurrer, and we recommend that the ruling of the district court be affirmed and the case remanded with directions to allow the plaintiff to amend, [46] and show, if it can, that a part of its territory is legally within the territorial limits of the city of Grand Island. Ames and Albert, GO., concur. By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is affirmed, and the case remanded with directions to allow the plaintiff to amend its petition if it so elect; otherwise the judgment appealed from to become final. Judgment accordingly. j