Formation

A municipality is a unified body with a community of interest, gathered into a single mass with recognized and well-defined boundaries, not separate and disconnected areas[i].

The power to create and to destroy municipal corporations, and to enlarge or diminish their boundaries is held to be solely and exclusively the exercise of legislative power[ii]. In the absence of a constitutional restriction, the power of the legislature over municipal corporations is practically unlimited[iii].

In some states, the legislature is expressly empowered to create and organize local governments and to create municipal corporations by special law[iv].  In other states, the incorporation of municipalities is under general laws, and not by special laws[v].

A town charter, whether adopted by special law or under a home rule Act, constitutes the organic law of a municipality[vi].  A town’s charter is the fountainhead of municipal powers.  The charter serves as an enabling Act, both creating power and prescribing the form in which it must be exercised.

A function of the legislature is to prescribe the conditions of incorporation and it is the  obligation of the courts to see that they are met[vii].  Courts will not inject provisions not found in the statute however desirable they may be.

A de facto government is one existing in fact, having effect even without a formal or legal basis[viii].  The doctrine of de facto municipal corporations is generally recognized in the U.S[ix].  A de facto corporation is one so defectively created as not to be a de jure corporation, but nevertheless the result of a bona fide attempt to incorporate under existing statutory authority, coupled with the exercise of corporate powers, and recognized by the courts as such in all proceedings except a direct attack by the state questioning its corporate existence[x].

There are three requisites to constitute a de facto municipal corporation[xi]:

  • A charter or general law under which such a corporation purports to be  lawfully organized;
  • an attempt in good faith to organize thereunder; and
  • an actual user of the corporate franchise.

 

Where a municipality is a de facto corporation, the validity of its ordinances and corporate existence can be questioned only by the state in direct proceedings such as quo warranto brought through the instrumentality of the Attorney General or other officer or person authorized to invoke the remedy[xii].

A municipality can add territory that is adjacent or contiguous to its corporate limits[xiii].  The extension of municipal boundaries by annexation is a legislative act by the governing body of a municipality[xiv].

The legislature not only has authority to determine the territory and boundaries of various municipal corporations, but also to change or alter them by annexing or disconnecting territory, either with or without consent of the corporate authorities[xv].

Thus the legislature has power[xvi]:

  • to establish and to abolish municipalities,
  • to provide for their government,
  • to prescribe their jurisdiction and powers, and
  • to alter or amend the same at any time.

 

However, the legislature is not authorized to violate other provisions of the constitution, expressed or implied.

Accordingly, the creation of or annexation of new territory to a town is a matter within the sole discretion of the legislature and does not in any manner depend upon the will of a majority or any of the inhabitants living within the territory[xvii].

The purpose of a municipal incorporation is to furnish local self-government and co-operative service.  The needs of the municipality and the benefits to the property and residents thereon are the sole justification for inclusion of land within municipal limits[xviii].

There cannot be at the same time, within the same territory, two distinct municipal corporations exercising the same powers, jurisdiction, and privileges[xix].  However, the legislature may, for one purpose, create a municipal corporation embracing territory situated wholly or partly within the boundaries of another municipal corporation already organized for another purpose[xx].

A principle applicable to determine the boundaries of sovereign states applies to those of municipal corporations, since both are governmental entities having territorial boundaries[xxi].  Thus, the doctrine of acquiescence applies when fixing the boundaries of municipal corporations.

In La Porto v. Philmont, 39 N.Y.2d 7 (N.Y. 1976), the court held that the doctrine of acquiescence is applicable where, by custom, usage, and the passage of time, disputed territory has been assumed by all interested persons to be beyond the boundaries of one entity of local government and within those of another.  Further, the doctrine is applicable where property owners or adjacent units of local government have relied to their detriment upon the inaction and passivity of a municipal corporation to which knowledge of the original boundaries at the time of incorporation may be imputed.

However, this doctrine does not apply to municipal boundary disputes wherein the boundary line has been clearly fixed by the legislature[xxii].

Ordinarily the same rules of construction as govern the description in a grant or conveyance to an individual are applicable in determining the territorial limits of a municipality bounded by a river or body of water.

When a municipal corporation is bounded by a tidal navigable watercourse, its territorial limits extend only to the low water mark.  When it is bounded by a fresh water unnavigable watercourse, its territorial limits extend to the middle of the stream[xxiii].

Boundaries of a municipality, bordering on navigable waters, may be extended for purposes of jurisdiction, by the building of wharves, piers or structures, permanently filled in with earth, and extending into the water[xxiv].  They may also be extended by natural accretions or gain of soil by alluvion, or the filling out from the shore and reclaiming the land from the inundation of the water.

[i] Williams v. Town of Salina, 2005 OK CIV APP 34 (Okla. Ct. App. 2005).

[ii] In re City of Phoenix of Certain Contiguous Terr., 52 Ariz. 65 (Ariz. 1938).

[iii] Id.

[iv] New York v. State, 158 A.D.2d 169, 173 (N.Y. App. Div. 1st Dep’t 1990).

[v] Hoovler v. State, 689 N.E.2d 738, 745 (Ind. Ct. App. 1997).

[vi] O’Donnell v. City of Waterbury, 111 Conn. App. 1 (Conn. App. Ct. 2008).

[vii] In re Proposed Incorporation of Volo, 229 Ill. App. 3d 321 (Ill. App. Ct. 2d Dist. 1992).

[viii] Jordan v. Knox County, 213 S.W.3d 751, 774 (Tenn. 2007).

[ix] Bethany v. Mason, 202 Okla. 66 (Okla. 1949).

[x] Glaze v. Grooms, 324 S.C. 249 (S.C. 1996).

[xi] Stroiney v. Crescent Lake Tax Dist., 205 Conn. 290 (Conn. 1987).

[xii] Bethany v. Mason, 202 Okla. 66 (Okla. 1949).

[xiii] Williams v. Town of Salina, 2005 OK CIV APP 34 (Okla. Ct. App. 2005).

[xiv] Id.

[xv] Geweke v. Niles, 368 Ill. 463 (Ill. 1938).

[xvi] State ex rel. Davis v. Stuart, 97 Fla. 69 (Fla. 1929).

[xvii] Carrithers v. Shelbyville, 126 Ky. 769 (Ky. 1907).

[xviii] McKeon v. Council Bluffs, 206 Iowa 556 (Iowa 1928).

[xix] In re Petition of Sanitary Board of East Fruitvale Sanitary Dist., 158 Cal. 453 (Cal. 1910).

[xx] Aurora v. Aurora Sanitation Dist., 112 Colo. 406 (Colo. 1944).

[xxi] Whiting v. East Chicago, 266 Ind. 12 (Ind. 1977).

[xxii] Residents of West Side of Wayburn Street v. Detroit, 109 Mich. App. 321 (Mich. Ct. App. 1981).

[xxiii] Covington v. State Tax Com., 231 Ky. 606 (Ky. 1929).

[xxiv] Treuth v. State, 120 Md. 257 (Md. 1913).


Inside Formation