Enderson v. Hildenbrand , 52 N.D. 533 ( 1925 )

I concur in the opinion prepared by Mr. Justice Burke. I think it entirely clear that the statute under consideration is not vulnerable either on the ground that there is an unwarranted delegation of power to the city council (or commission), or a delegation of legislative power to the courts. The legislature has prescribed certain general, definite rules applicable in all cases as to what territory is to be excluded from cities; and authorized the city council (or commission) to ascertain and determine in each case whether it does or does not fall within the rule established by the legislature. This does not constitute a delegation of legislative powers in contravention of the constitutional inhibition. 6 R.C.L. pp. 175, 176. For it is competent for the legislature to pass a law, the ultimate operation of which may, by its own terms, be made to depend on a contingency. People ex rel. Grinnell v. Hoffman, 116 Ill. 587, 56 Am. Rep. 793, 5 N.E. 596, 8 N.E. 788. "The true distinction . . . is this: The legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make, its own action depend." Locke's Appeal, 72 Pa. 491, 13 Am. Rep. 716. Under the law in question here a city council (or commission) is given power only to ascertain whether certain facts do or do not exist. It is given no power to determine any question of legislative policy; nor are the courts given any such power. The only power given to the courts is to review the findings of the city council, or commission, for the purpose of determining whether the city council or commission regularly pursued its authority and whether the evidence is sufficient to sustain its finding. Laws 1923, chap. 172. The review so afforded does not involve the exercise of legislative, but the exercise of judicial, powers.

The only question involved in this case which has caused me difficulty is whether the law does, in effect, delegate legislative power to a private individual or individuals. Under the provisions of the law territory can be detached from a city only upon a petition in writing, signed "by not less than three-fourths of the legal voters and by property owners of not less than three-fourths in value of the property" sought to be detached. Hence, it is said that in every such case, that is, in every case where certain territory indisputably falls within the rule prescribed by the statute, it is, in effect, the petitioners, or those who are qualified to petition, who determine whether the territory shall or shall not be detached. And, in a case like the one at bar, where there is only one owner, the property can be detached only in case he petitions for its exclusion. In such case, that is where the undisputed facts are such as to bring the property within the operation of the law, it is really the owner who determines whether the particular tract shall or shall not be detached from the city. If he deems it for his own best interest to have it remain within the city he may refrain from presenting a petition for detachment, and the territory will continue to remain a part of the city. On the other hand, if he deems it for his best interest to have it detached, he may present a petition for its detachment, and the city council (or commission) will be in duty bound to order its detachment; it will have no discretion in the matter at all, and if it refuses to grant the petition and order the exclusion of the territory the owner may invoke the judicial review afforded by the law, and have the decision of the city council set aside, and the territory excluded. And appellant contends that the result of the operation of the law in such case is that it is really the owner of the land who determines the policy of exclusion, that is, he determines whether he will cause the property to be excluded from, or whether he will permit it to remain within, the city. There is, I think, considerable force in this contention. But, of course, in statutes of this kind there must be some provision for applying, or invoking, the law in each particular case. And after a careful consideration of the matter, I am not prepared to say that the legislature was inhibited from prescribing the conditions for the application of the law which it did in this statute. Whatever doubt I have on the subject must be resolved in favor of the law. For, merely to doubt the constitutionality of a law, is to sustain it. 6 R.C.L. pp. 97, 98; State v. First State Bank, ante, 231, 202 N.W. 391. While I have found no case where the precise question involved here has been considered, it appears that similar, or analogous, statutes have been enacted by the lawmakers, and enforced by the courts of other states. See 1 McQuillin, Mun. Corp. pp. 326, 327; Young v. Carey, 184 Ill. 613, 56 N.E. 960; 1 Dill. Mun. Corp. 5th ed. p. 623, note 2.