Spalding, Ch. J.
(after stating the facts as above). The appellants submit six reasons why it is contended that the judgment should be reversed: ,
1. That the question is political, and therefore not cognizable judicially.
[27] In general, the method and desirability of extending corporate limits .are legislative questions. They relate to the public interests, and whether they will be subserved by the creation of a municipality or the extension of its limits, and, in so far as the expediency or wisdom of the annexation in question was involved, the legislature delegated the power to determine such questions, under certain limitations, to the city council of Grand Forks; but those questions are at most only indirectly involved in the present proceeding.
The question as to whether the power conferred upon the city council has been legally exercised, whether the statute under which it acts is constitutional, what the effect of any irregularities or omissions in pursuing the method prescribed by the statute may be, and other similar questions, are for judicial determination. The creation or extension is a legislative or political function, but courts may determine what are the corporate limits already established, whether what is claimed to be a corporation is a corporation, and whether the legislative authority has been exceeded by the city in its attempts to extend its boundaries. Glaspell v. Jamestown, 11 N. D. 86, 88 N. W. 1023. To the cited case we make reference for a more exhaustive discussion of this question, which need not be repeated here. In the case at bar, the main questions, and those only which we find it necessary to decide, relate to the validity of the proceedings, and not to the policy of annexation, hence this point cannot be sustained. See also Pueblo v. Stanton, 45 Colo. 523, 102 Pac. 512.
2. The next point made by appellant is that questions for determination in this action are not proper subjects for consideration in equity; in other words, that either quo warranto or certiorari is the proper remedy, and that injunction cannot be availed of.
(a) As to quo warranto. Sec. 7351, Rev. Codes 1905, says: “An action may be commenced by the state, or any person who has a special interest in the action, against the parties offending, in the following cases: 1. When any person shall usurp, intrude into, or unlawfully hold or exercise any public office, civil or military, or any franchise within this state, or any office in a corporation created by the authorities of this state. ...” The relators are duly elected and qualified officials of the city of Grand Forks. They are not usurpers in the offices which they fill. Neither have they, intruded themselves into such [28] offices, and there is no claim that they are unlawfully holding or exercising the offices to which they were elected, and for which they qualified. No one has asserted a right to fill the same offices or either of them.
The substance of the. respondents’ contention is that the complaint alleges that they exceeded their jurisdiction by doing, and threatening to do, franchise acts beyond the limits of the city of Grand Forks, over territory claimed by respondents to have been illegally annexed to that city; that they are charged with going outside the limits of the city of Grand Forks to exercise their offices, to wit, into territory belonging in a certain township and a separate school district, and upon premises of private individuals, the result of which will he that the domicil of residents of the territory attempted to be annexed will be changed from the municipality of Falconer township into the city of Grand Forks, and from School District 59 into the school district comprised in the city; that thereby their relations to municipal affairs will be changed, and the burden of taxation enormously increased, and all without warrant of law, or at least without compliance with the law which has been enacted, fixing the methods to be pursued to bring about such changes.
We are of the opinion that the section in question, which is the one relating to proceedings in the nature of quo warranto, was not intended to correct an abuse of excess in the use of an office or franchise; that the legislative intent was to provide a method of removing one from an office, who was a usurper therein, and to prevent the usurpation of a franchise; that is, to prevent the exercise of a franchise not in existence. These officials and their acts are not of such character as to bring them within the terms of this section, but if the proceedings by which it is claimed the additional territory was annexed to the city of Grand Forks are invalid, they are simply going outside the territory over which they have jurisdiction, and performing acts under color of law which are unofficial and void, if not ratified.
Our conclusions are supported by the consideration of other sections of our Code. Sec. 7353 provides for setting forth the name of the person rightfully entitled to the office, in addition to the other allegations of the complaint in quo warranto, with a statement of the right of such person to the office, and for the arrest of the usurper. Sec. 7354 provides that in every such case judgment shall be rendered [29] upon the right of the defendant and also upon the right of the party so alleged to be entitled, or only upon the right of the defendant, as justice shall require. This latter phrase is undoubtedly incorporated in the section with reference to actions wherein the court may find that neither party is entitled to the office. Sec. 7355 provides for the qualification of the complainant when he is found to be entitled to the •office, and for his making a demand for the books and papers belonging to the office from which he may have been excluded. Sec. 7356 makes the defendant in such case, if he refuses or neglects to deliver the official property on demand, guilty of a misdemeanor, and provides how the prevailing party shall be put in possession. Other sections, which need not be here referred to, have more or less bearing upon the subject, and shed some light on it.
The identical question involved in the case at bar was passed upon in North Birmingham v. State, 166 Ala. 122, 139 Am. St. Rep. 17, 52 So. 202, 21 Ann. Cas. 1123. Proceedings in the nature of quo warranto were brought in the name of the state on the relation of private citizens against the city of North Birmingham and its officers, to test the validity of the extension of the corporate limits made by an order and decree of the probate court. Sec. 5453 of the Code of 1907 of Alabama was identical in substance with § 7351, Rev. Codes 1905 of North Dakota. In that case the information and proof showed that the respondents were legal officers of North Birmingham, and the complaint was that they were exceeding their jurisdiction by doing, or threatening to do, charter or franchise acts beyond the limits of North Birmingham, over territory which it was claimed had been illegally annexed to North Birmingham. The court says: “This would not be the unlawful holding or exercise of a public office, or the unlawful holding or exercise of a franchise. They are properly in office, and the franchise that they are using is not questioned, nor are the acts complained of unauthorized. They are merely charged with going beyond the limits of jurisdiction in the exercise of an office of franchise. Sec. 5453 was not intended to correct a mere abuse or excessive use of an office or franchise, but to remove a usurper from an office or to prevent the use of a franchise which did not exist. . . . The manifest purpose of the present information is to test the validity of the annexation of certain territory to North Birmingham, and to restrain the respondents from exercising [30] acts over same, — not to oust them from the exercise of a franchise.. . . .If the respondents are exceeding their jurisdiction or authority, this may be checked by an appropriate proceeding, but not by a quowai’ranto to test their title to an office or right to a franchise. Here, the franchise exists, and the respondents are only charged with an excessive use of same, and are sought to be enjoined from using same-in a certain way, and not that they be ousted from said franchise..... It seems well settled by the great weight of authority that where city authorities assume to exercise mere corporate powers beyond the territorial boundaries of the corporation, the remedy is not quo warranto, but injunction.”
In Lutien v. Kewaunee, 143 Wis. 242, 126 N. W. 662, 127 N. W. 942, the same question was also passed upon. It was there said “quowarranto is manifestly inappropriate.”
We do not decide whether the state might institute and maintain proceedings in the nature of quo warranto directed at the city of Grand Forks as a corporation, as this is not an action by the state, but one by parties having a special interest in the subject.
(b) It is manifest that certiorari is not the proper remedy. The-writ of certiorari goes to the record made by the inferior court, board, or tribunal, and if, as in the case at bar, facts are alleged which may be essential to a determination of the proceeding outside the record, they cannot be reached by the writ. In the instant case, the complaint alleges numerous acts and facts not disclosed by the record of the proceedings in the city council of Grand Forks. Among such questions are the area of the original city and the area of the included tracts, as the statute fixes a limit of the amount of territory which may be annexed with relation to the territory included in the city, and the question as to the character of the territory is also raised, that is, whether farming, pasturing, or what.
In Lutien v. Kewaunee, supra, it was held that certiorari would not reach the question of the number of electors and landowners in the annexed district, which, under the Wisconsin statute, was a material question.
(c) From what has already been said relating to the writs of quo warranto and certiorari, it is evident that injunction is a proper remedy. That it is so is supported by numerous authorities, which we need not [31] review at great length. We, however, make reference to a few of the many.
In Lutien v. Kewaunee, supra, the question arose as to the legality of an attempted annexation of territory to the city of Kewaunee. Owners of real estate in the annexed territory brought suit on behalf of themselves and of other property owners and taxpayers similarly situated, to enjoin the city officials from levying any taxes upon their real estate, and from exercising any acts of jurisdiction over the territory sought to be annexed, and to enjoin the city clerk from making out and delivering a tax roll and tax warrant including such real estate, and the city treasurer from collecting or attempting to collect taxes on the same. What were claimed to be jurisdictional defects in the proceedings were alleged as grounds for the action prayed for, and that learned court held that the remedy was in equity, and cited authorities sustaining its conclusions. The reasoning and conclusion of that court sustains the right of the plaintiff brick company to maintain the action in the case at bar.
See-also High on Injunctions, § 1254. That author lays down the rule that where the proceedings of a municipal corporation, in the annexation of adjacent territory to the municipality, are in excess of the corporate power and authority, they may be enjoined at the suit of a citizen and taxpayer whose taxes would be increased by the proposed action, and that property owners of such territory, suing in behalf of themselves and all others similarly situated, may enjoin such illegal annexation, both upon the ground of preventing illegal taxation and to prevent a change of the property of citizens from the territorial limits of one municipality or political body to those of another, and that, when the proceedings of a board of municipal officers for annexing contiguous territory are wholly void by reason of noneompliance with the statute conferring the jurisdiction, taxes assessed upon the land may be enjoined.
McQuillin, on Municipal Corporations, vol. 1, § 288, states that citizens and taxpayers may institute the appropriate proceeding to test the legality of the annexation or detachment of territory, e. g., injunction; that when a petition for annexation is not signed as required by statute, the property owner within such territory may enjoin the execution of an ordinance for an election founded upon the petition; that [32] taxpayers may test the validity of proceedings annexing territory by injunction against the collection of taxes on their property by the city.
It is held in Pueblo v. Stanton, 45 Colo. 523, 102 Pac. 512, that proceedings for the annexation of territory, exceeding the corporate authority, will be enjoined at the suit of the property owner. See also Wilton v. Pierce County, 61 Wash. 386, 112 Pac. 386.
In Pittsburg’s Appeal, 79 Pa. 317, it is held that a private citizen may maintain a bill to restrain the city from carrying into operation an ordinance to annex territory, to the city. That court says: “The right of a private citizen to maintain a bill such as that upon which this case is founded is hardly open for argument. So many are the cases in which such bills have been sustained, one might suppose this matter to be no longer open for debate.” That court refers to certain cases, and says that it was held “that the interest of a taxpayer, when money is to be raised by taxation or expended from the treasury, is sufficient to entitle him to maintain a bill to test the validity of the law which proposes the assessment or expenditure. If, then, such an interest be sufficient to enable one to test the validity of an election law, which at most could increase his tax to but a trifling degree, a fortiori shall one like the plaintiff, who is threatened by most burdensome impositions, have the power thus to inquire into the right by which the councils of Pittsburg propose to act in subjecting his person and property to their jurisdiction, for the purposes of municipal government and taxation.”
In Sample v. Pittsburg, 212 Pa. 533, 62 Atl. 201, the legality of a proposed annexation of the city of Allegheny to the city of Pittsburg was passed upon, and it was held that citizens and taxpayers of Allegheny city might maintain a bill in equity to restrain the city of Pittsburg and its municipal officers from taking any proceedings under the act of April 20, 1905, to annex the city of Allegheny to the city of Pittsburg.
In Roswell v. Ezzard, 128 Ga. 43, 57 S. E. 114, it is held that, at the instance of a resident citizen and taxpayer, equity will restrain proceedings instituted under color of law, but which are illegal, the effect of which is designed to change his domicil from one political subdivision to another. The court said: “A court of equity will not turn a deaf ear to his complaint that the municipality, under color of [33] law, is attempting to change his domicil, and require him to meet each new condition resulting from such attempt, by a separate proceeding, . . . when all of these and sundry other complications may be avoided by the grant of an injunction.”
See also High, Extr. Legal Rem. § 618, and Layton v. Monroe, 50 La. Ann. 121, 23 So. 99; 28 Cyc. 212; Delphi v. Startzman, 104 Ind. 343, 3 N. E. 937; Osmond v. Smathers, 62 Neb. 509, 87 N. W. 310; Eskridge v. Emporia, 63 Kan. 368, 65 Pac. 694; Windham v. Vincennes, 58 Ind. 480.
In Delphi v. Startzman, 104 Ind. 343, 3 N. E. 937, it was held that, where the complainant was seeking to prevent the city from carrying into effect an illegal order for the annexation of territory within which his lots were situated, there was an attempt to interfere with property rights under color of legal authority, and that injunction was the appropriate remedy.
In Hyde Park v. Chicago, 124 Ill. 156, 16 N. E. 222, the validity of an attempted annexation of the village of Hyde Park to the city of Chicago was considered and passed upon, and it was held that, inasmuch as the property of an unincorporated village was in the nature of a trust fund, which the corporate authorities held for the use of the public, and any unlawful interference with it was calculated to inflict irreparable injury upon the community, it presented a clear case for equitable relief. That injunction will lie, see also East Springfield v. Springfield, 238 Ill. 534, 87 N. E. 349; and Morgan Park v. Chicago, 255 Ill. 190, 99 N. E. 388, Ann. Cas. 1913D, 399.
The above are a few- of the authorities sustaining the contention of respondent that injunction is a proper remedy in the case at bar. We have examined all the authorities cited by appellant, a few of which are more or less in point, and it may be conceded that there is a conflict in the authorities, largely by reason of a failure on the part of some courts to make pertinent distinctions. Although we deem the great weight of authority to sustain the contention of respondent, we do not need to go outside the decisions of own court on the question. We have only done so because of the careful and extensive investigation the subject has been given by counsel and the elaborate arguments made.
We deem Farrington v. New England Invest. Co. 1 N. D. 102, 45 N. W. 191, and Northern P. R. Co. v. McGinnis, 4 N. D. 494, 61 N. W. [34]*341032, in point, so far as tax proceeding's relating to taxes on real property are in question, but tbe recent case of Baker v. LaMoure, 21 N. D. 140, 129 N. W. 464, is direct authority sustaining our conclusion. It was there held that an allegation showing in effect that a proposed assessment against the plaintiff’s property would be illegal was sufficient to show that the plaintiff had such interest as to entitle him to the interposition of a court of equity, inasmuch as, if not restrained, his property would be encumbered by a lien in excess of what it would be if the council had not exceeded its authority. See also Minneapolis, St. P. & S. Ste. M. R. Co. v. Dickey County, 11 N. D. 107, 90 N. W. 260; Schaffner v. Young, 10 N. D. 245, 86 N. W. 733, wherein it is held that courts of equity will intervene, even in personal property cases, where a tax is imposed by officers acting outside of their territorial jurisdiction.
We conclude that plaintiffs sought the remedy applicable to the facts pleaded in this case.
3. It is urged by appellant that plaintiffs have, by their delay in instituting these proceedings, acquiesced in the action of the city council to such an extent as to estop them from asserting that they have not been legally incorporated within the city limits of Grand Forks. The resolution of annexation was adopted October 23, 1911. This proceeding was instituted on the 11th of March, 1912. We find no acts done by the city or its officials in the meantime of sufficient importance to justify the court in holding that a delay of little over four and one-half months in instituting the proceedings estops the plaintiffs. In determining this question, consideration must be given, not only to the time which elapsed, but to the acts done by the city and its officials, and the seriousness of the injury complained of by the plaintiffs. The city prepared and filed a map, and enacted an ordinance, including the annexed territory in certain election precincts, and called an election, but this suit was commenced before the election. We hold that plaintiffs were not estopped.
4. It is next urged that School District 59 and the township of Falconer are not proper parties plaintiff. This question is really immaterial, because it is clear that the brick company is a proper plaintiff, and if one of the parties is so, then the action cannot be dismissed, but on the authority of the Illinois cases heretofore cited, we [35] are satisfied that both the. school district and the township, as such, had sufficient interest in the matter in controversy to sustain the right to complain. It would reduce their revenue, and raise the rate of taxation materially, and as to the school district might seriously interfere with the conduct of the schools by reducing the number of pupils and otherwise disarranging its affairs.
5. The next and most serious question raised is as to the validity of the acts of the city council in the attempted annexation. Under § 2825, Nev. Codes 1905, as amended by chap. 58, Laws of 1909, any city may so extend its boundaries as to increase its territory, not to exceed one half its present area, by resolution of the city council passed by two thirds of the entire members elect.
Sec. 2826 of the same chapter requires the resolution referred to to be published in the manner therein set forth, and copies thereof to be posted in five of the most conspicuous places within the territory proposed to be annexed, and authorizes and provides that the territory described in such resolution shall be included within, and become a part of, the city, unless a written protest signed by a majority of the property owners of the proposed extension is filed with the city clerk or auditor within ten days after the last publication of such resolution. It further provides that, if such written protest is filed, the council shall hear testimony offered, make a personal inspection of the territory, when, if it is the opinion that such territory ought to be annexed, and if, by. resolution passed by two thirds of the entire members elect, it shall order such territory to be included within the city, it shall then make and cause an order to be made and entered, describing the territory annexed, whereupon the territory described in such resolution shall be included and become a part of the city, with the proviso that, if the greater portion of such territory is used for farming and pasturage purposes, then such territory shall not be annexed.
It appears in this case that, after the adoption of the preliminary resolution, the publication and posting of the notices required, protests were signed and filed. The matter was considered, a personal inspection made by the council, whereupon, without further notice, a resolution was adopted amending the original resolution by striking out a considerable portion of the territory therein described and included, and the resolution as so amended was in substance adopted in the manner [36] provided by the statute. The question is, Was it not necessary to publish and post notices of the proposed extension of the boundaries of the city, after the protests were filed and heard on the original contemplated extension, and describing the territory actually annexed? Incidentally,, and preliminary to a determination of this question, we may observe that this court has heretofore announced its construction of the law regarding the powers of cities. In Stern v. Fargo, 18 N. D. 289, 26 L.R.A.(N.S.) 665, 122 N. W. 403, we held it to be well settled that incorporated cities have only the following powers: 1, Those granted in express words; 2, those necessarily implied or incident to the powers expressly granted; 3, those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable ; 4, that doubtful claims of power, or doubt or ambiguity in the terms used by the legislature, are resolved against the corporation. And equally applicable is the language of this court in the recent case of State ex rel. Minehan v. Meyers, 19 N. D. 804, 124 N. W. 701, wherein it was said: “It must be borne in mind that the proceedings for the division of a county and the organization of new counties are strictly statutory, and no intendment can be indulged in their favor. It is no doubt true that the statute must receive a liberal construction to the end that the legislative intent may be given effect, but where such intent is reasonably apparent, it is incumbent upon those who seek to interfere with existing county organizations by the creation of new counties, to at least substantially conform to the requirements of the statute.” It would thus appear that, if there is any ambiguity in the language of § 2826, it should be resolved against the power of the city; but our determination of this question need not rest upon this conclusion.
It is a fundamental element of American jurisprudence that parties are entitled to notice and hearing before their situation can be changed in a legal proceeding to their detriment, and before they can be deprived of their property or other rights. It can hardly be doubted that, with the change from one municipality to another, the increase in the rate of taxation which would necessarily follow, and the added burdens incident to becoming a part of a city as compared with those incident to the township, are material to the rights of the parties affected. They were given notice by the council of a contemplated change, and an opportunity was afforded them to enter their protest. This they did, [37] but their protests only related to the territory first proposed for annexation to the city. Those protests were presumably made by those objecting to the inclusion of the territory described in the notice. We cannot presume that their objections were the same that they would have been, had the original notice only included the territory described in the final resolution. Neither can we assume that other parties might not have objected to the inclusion of the territory included in the smaller acreage, who did not object to the total. They had a right to protest against the acts which were in fact consummated by the council. They never had such an opportunity. They were not notified that only a fraction of the territory as advertised was to be annexed. They had no opportunity to protest as to that territory. By the change the city council lost jurisdiction, if it ever acquired it, to make the annexation. It did so without notice to those interested in the contemplated annexation. Notice of the contemplated change did not furnish notice of the change made.
This statute, if valid, grants to cities most extraordinary power, by permitting city councils to annex territory in direct opposition to the wishes and protests of all the people whose interests are to be affected, and if there is reason for a struct construction of any statute, it may certainly be found in a case of this kind, and the city should be required to give the interested parties such, and all the notice that the statute prescribes, as a prerequisite to a valid annexation.
The city has attempted to exert against the complainants the power derived from a statute and granted upon a condition, which condition is, that the conditions precedent prescribed by the statute shall be complied with. This is essential. The fact that the resolution, as at first adopted, included a small portion of territory already within the limits of the city, doubtless by mistake, is immaterial. It included other territory which was not within the city limits at that time, and which was not included in the final action of the city council. No order has been made by the council annexing the territory covered by the original resolution, and of which the interested parties had notice, and the fact that the members of the city council acted in good faith, which is not denied, is immaterial. The statute is that, “if no written protest is filed, the land therein described becomes a part of the city.” “Therein described” relates to the original resolution, and the description of [38] land which it contains and which is given in the notice published and posted. When the resolution is attempted to be amended and the acreage changed, the council is acting upon a different proposition from the one which the owners and taxpayers have been given an opportunity to protect themselves against.
Nowhere in the statutory provision do we find anything indicating that anything different from the whole of the territory as to which notice is given may be substituted for that contained in the notice and resolution. Under the proviso we find that, if the character of a portion of said territory consists of land used for farming or pasturage purposes, “then” said territory shall not be annexed. This refers to the whole territory proposed for annexation, and, as we have heretofore indicated, the fact that if farming lands were included in the original resolution in a sufficient quantity to defeat the annexation, parties aware of that fact might, for that reason alone, refrain from going to the trouble of entering a protest, which they would have done, had it not been included. It would have been a simple matter for the legislature to have clearly indicated its intention to grant to the city the power to annex part only of land described, if it had intended to grant this power. It has not done so. In further support of our conclusion, see Peru v. Bearss, 55 Ind. 576, where it is held that, inasmuch as the entire proceedings for annexation of contiguous territory to incorporated cities are statutory proceedings, to make them operative and give them validity, it is essentially necessary that all proceedings be in strict conformity with the provisions and requirements of the statute.
For the reasons stated, it is clear to the members of this court, that the attempted annexation was invalid, and that the judgment of the trial court should be affirmed. [Respondents suggest and argue other reasons for sustaining the judgment, and particularly and strenuously argue that the statute under which the attempt to annex was made is unconstitutional. In view of our conclusions stated above, it is unnecessary to pass upon other questions, and, while we entertain serious doubts of the validity of the statute, we cannot, with propriety, under the precedents, pass upon this, when not necessary to do so.