City of Ames v. Olson, 50621

• Decision Date: 08 May 1962
• Docket Number: No. 50621,50621
• Citation: 253 Iowa 983,114 N.W.2d 904
• Parties: CITY OF AMES, Iowa, a Municipal Corporation, Plaintiff-Appellee, v. Sigfred OLSON et al., Defendants, Robert W. Williams et al., Defendants-Appellants.
• Court: Iowa Supreme Court

Page 904

114 N.W.2d 904

253 Iowa 983

CITY OF AMES, Iowa, a Municipal Corporation, Plaintiff-Appellee, v. Sigfred OLSON et al., Defendants Robert W. Williams et al., Defendants-Appellants.

No. 50621.

Supreme Court of Iowa.

May 8, 1962.

Don C. Swanson, M. A. Iverson and F. H. Forrest, Des Moines, for defendants-appellants.

Rex B. Gilchrist, Ames, for plaintiff-appellee.

Mahoney, Jordan, Statton & Smith, Boone, Wisdom, Sullivan & Golden, Don C. Swanson, M. A. Iverson and F. H. Forrest and Evan Hultman, Atty. Gen., Des Moines, Joseph H. Buchanan, Clark & Clark, C. J. Lyman, Asst. Atty. Gen., Iowa State Highway Commission, and Max H. Buck, Iowa State Highway Commission, Ames, for defendants-appellees.

Forrest Milliken, pro se.

SNELL, Justice.

The city of Ames, a municipal corporation, brought this action in equity under the provisions of section 362.26, Code of Iowa, I.C.A., as the fourth statutory step for annexation of unincorporated territory adjoining the city. Certain defendants filed special appearance challenging the jurisdiction of the court to hear and determine any issues as tendered by plaintiff. The special appearance was overruled. This appeal is taken as a matter of right by those defendants who have elected to stand on the record.

The focal point of attack is the claimed insufficiency of plaintiff's petition to give the court jurisdiction of the subject matter. Defendants claim that the petition filed by the city is ultra vires and entirely void or otherwise so deficient in form and substance that it fails to invoke the jurisdiction of the court, and that the procedure as attempted by plaintiff is violative of the due process requirements of the Constitutions of the United States and the State of Iowa.

Appellants, who were among the defendants, are land owners in the area sought to be annexed.

We are concerned only with the sufficiency of the petition to confer jurisdiction. We do not have before us any question of evidence or proof.

It should be kept in mind that defendants' attack is by special appearance and not by motion, request for adjudication of law points or answer.

I. Rule 66, Rules of Civil Procedure, 58 I.C.A., provides that a defendant may appear specially for the sole purpose of attacking the jurisdiction of the court. Rule 104, Rules of Civil Procedure, provides that want of jurisdiction of the person must be raised by special appearance before any other appearance and that want of jurisdiction of the subject matter may be so raised.

Jurisdiction refers to the power of a court to decide an issue on its merits. Hullburd v. Eblen, 239 Iowa 1060, 33 N.W.2d 825.

In State ex rel. Cairy v. Iowa Co-op. Ass'n, 248 Iowa 167, 169, 79 N.W.2d 775, it is said:

'The text in 21 C.J.S. Courts, § 35(b), pp. 44, 45, 46, defines jurisdiction of the subject matter, '* * * as the power to hear and determine cases of the general class to which the proceedings in question belong, * * *. Thus a court has jurisdiction of the subject matter when it has the right to try the kind of proceeding, * * *; when it has jurisdiction of the person and the cause is the kind of cause triable in such court.

* * *

* * *

"The subject matter of a suit, when reference is made to question of jurisdiction, means the nature of the cause of action, and the relief sought.'

'In the language of 14 Am.Jur. 364, Courts, section 160, 'Jurisdiction of the subject matter does not mean simply jurisdiction of the particular case then occupying the attention of the court, but jurisdiction of the class of cases to which that particular case belongs, of the nature of the cause of action, and of the relief sought.'

'Collins v. Powell, 224 Iowa 1015, 1020, 277 N.W. 477, 481, states, the court must have power to hear and determine cases of the general class to which the proceedings belong, 'which is known as jurisdiction of the subject matter * * *.'

'In re Appeal of McLain, 189 Iowa 264, 269, 176 N.W. 817, 819, states: 'Jurisdiction of the subject-matter has reference, not to jurisdiction in the particular case, but to jurisdiction in that class of cases.'

'Reed v. City of Muscatine, 104 Iowa 183, 184, 185, 73 N.W. 579, points out: '* * * it is important to distinguish between jurisdiction of the general subject and jurisdiction of the particular subject; for, if it be found that the case under consideration belongs to the former class, then it is within the jurisdiction of the court, * * *. '* * * this authority exists wherever there is power over a general class of cases.'''

We recently considered the extent to which the special appearance might attack a petition in Conrad v. Le Moines, Iowa, 112 N.W.2d 360, 361, 362. As stated, the primary question was whether, under the allegations of the petition, the case fell within a class of actions which the court could consider and in which it could render a valid judgment. We quote:

'It is the general rule that jurisdiction of the subject matter relates to the character of the controversy, and if the court is authorized to try that kind of cause, it is said to have jurisdiction of the subject matter involved. It relates to the power of the court to deal with the general subject involved in the action, to adjudicate the class of cases to which the particular case belongs. * * *

'* * * While the class of case is always determined from the allegations of the petition, the question of jurisdiction of the subject matter has nothing to do with the question of whether the allegations of the complaint set out a good cause of action. * * *' II. Cities and towns derive their power and authority by virtue of the statute and may only exercise such powers as are granted or are necessarily incident thereto. With this general statement appellee takes no issue.

Section 362.26 of the Code, I.C.A., provides that any incorporated territory adjoining any city or town may be annexed thereto and become a part thereof by following the procedure therein outlined. The statute provides that the clerk of the corporation, on order of the council, shall publish notice of a council meeting to consider a proposed resolution for annexation; that the council may provide by resolution for the annexation; that the proposition shall be submitted to the voters of the city or town; and that if the proposition is adopted, the council shall file in the district court a suit in equity. The matters that must be set forth in the petition are stated.

The petition as filed alleges: (We summarize.)

1. The corporate capacity of plaintiff.

2. The introduction by the council of a proposed resolution for annexation.

3. The adoption on May 3, 1960, of a resolution directing the city clerk to publish notice as required by law that the council would meet at 8:00 o'clock, p. m., * * * on May 17th, 1960, to consider the resolution and to hear objectors and proponents for annexation.

4. That following a 'public hearing conducted on the 17th day of May, 1960, aforesaid', a resolution was adopted, and that pursuant thereto a notice of special election on the proposal to annex was published. The dates of publication and election are set out.

5. The submission to and approval of annexation by the voters.

6. The direction to the city attorney to file this action.

7. The matters and factual allegations and list of benefits required by subsection 5 of the statute, including a plat.

Section 362.26 of the Code, I.C.A., contains subsections 1 to 6, inclusive. The first four set out what the council must do. Subsection 5 provides:

'5. The petition shall contain:

'a. A description of the perimeter of the entire property proposed to be annexed and a list of each property owner therein as shown by the plat books in the office of the county auditor.

'b. A Statement of facts showing that the municipal corporation is capable of extending into such territory substantial municipal services and benefits not theretofore enjoyed by such territory.

'c. A plat of such territory showing its relation to the corporate limits.

'd. That said annexation is not sought merely for the purpose of increasing the revenues from taxation of such municipal corporation.'

Subsection 6 provides what must be affirmatively shown by the city and then says: '* * * and if the court finds further that all of the proceedings and conditions precedent to annexation as required hereinbefore by subsections 1 through 5, inclusive, have been duly instituted and carried out as provided therein, the court shall decree the annexation. * * *'

These are matters of proof and not of pleading. It is only in subsection 5, quoted above, that we find the requirements of the petition.

The petition in this case was filed July 21, 1961. Original notices were mailed and published. No complaint is made that the notices were not in compliance with section 362.27 of the Code, I.C.A. No complaint is made as to the sufficiency of proof of such mailing and publication.

III. Defendants argue that plaintiff's petition failed to comply with the statute in 12 particulars. In determining the questions so raised, we are not determining the sufficiency of the allegations to entitle the plaintiff to prevail upon a trial. We are only determining the sufficiency to confer jurisdiction.

Defendants first urge that plaintiff's petition does not allege that the resolution of the council referred to the annexation of the territory involved in this action. Paragraph 2 of plaintiff's petition says that there was duly and legally introduced by the council a proposed resolution for the annexation of certain unincorporated territories adjoining the city of Ames, and in paragraph 7 there appear the perimeter descriptions of the several tracts of land involved.

Defendant urge that plaintiff's petition is deficient in failing to allege that the city clerk caused the required notice of the council hearing to be published. We find nothing in the statute requiring that proof of service of notice...