City of Bettendorf v. Abeln

• Decision Date: 12 December 1967
• Docket Number: No. 52541,52541
• Citation: 154 N.W.2d 836,261 Iowa 404
• Parties: CITY OF BETTENDORF, Appellee, v. Ben J. ABELN et al., Appellants.
• Court: Iowa Supreme Court

Page 836

154 N.W.2d 836

261 Iowa 404

CITY OF BETTENDORF, Appellee, v. Ben J. ABELN et al., Appellants.

No. 52541.

Supreme Court of Iowa.

Dec. 12, 1967.

Doerr, Dower & Rehling, Davenport, for appellants.

Albert J. Stafne, Jr. and Jack D. Gordon, Bettendorf, for appellee.

GARFIELD, Chief Justice.

This is an action in equity to review proceedings by the City of Bettendorf to annex 4.26 square miles of allegedly adjoining territory which was unincorporated. The petition was filed against the owners of the property to be annexed, in compliance with section 362.26, subds. 4 and 5, Code 1962. Proceedings required by section 362.26, subds. 1, 2 and 3 preliminary to filing the petition were duly carried out. Voters of the city approved the annexation by a majority of virtually two to one.

Section 362.26, subd. 6 requires a finding by the district court of 'an affirmative showing that the municipal corporation is capable of extending into such territory substantial municipal services and benefits not theretofore enjoyed by such territory, so that the proposed annexation will not result merely in increasing the revenue from taxation of such municipal corporation;' and a further finding by the court that all proceedings and conditions precedent to annexation as required by subsections 1 through 5 have been duly carried out. If these two findings are made 'the court shall decree the annexation.' City of Cedar Falls v. Sieglaff, 259 Iowa 263, 144 N.W.2d 116, 118.

Following trial the court here found the affirmative showing of capability required by section 362.26, subd. 6 was made. No question was raised as to compliance with the other proceedings and conditions precedent to annexation as required by 362.26, subds. 1 through 5. The court therefore decreed annexation. In doing so, it held without merit defendants' contention the territory annexed did not adjoin plaintiff city as required at the outset of section 362.26.

On this appeal defendants contend the city failed in its burden to affirmatively show it is capable of furnishing to the area to be annexed substantial municipal services and benefits not theretofore enjoyed, so the annexation will not result merely in increasing revenue from taxation. Defendants also assert the territory does not adjoin the city.

I. Since this is an equity case our review is de novo. Code section 624.4; Rules of Civil Procedure 267, 334. Especially when considering the credibility of witnesses we give weight to the fact findings of the trial court but are not bound by them. Authorities need not be cited for this. Rule 344 (f) 7, R.C.P. When we give weight to the trial court's findings we are not justified in disturbing them.

II. Each side cites six Iowa cases on the disputed question whether the city made the affirmative showing it is capable of furnishing to the area the services and benefits referred to in 362.26, subd. 6. The most recent is City of Cedar Falls v. Sieglaff, supra, 259 Iowa 263, 144 N.W.2d 116. The others are the five decisions cited, in the order they were filed, at page 118 of the Cedar Falls opinion.

After citing these five precedents the Cedar Falls case continues:

'These precedents make it clear that annexation is a legislative function which cannot be delegated to the courts. The judicial function in cases like this is to make a factual determination as to whether the conditions prescribed by the legislature for annexation of territory have been met and, if it is found they have, to decree annexation, otherwise to deny it. We have no discretionary power to determine whether the proposal is good or bad, wise or unwise.

'City of Des Moines v. Lampart, supra, at page 1038 of 248 Iowa (1032), page 724 of 82 N.W.2d (720), contains this statement which has been repeated several times: 'The court was not required to determine How capable plaintiff must be, nor How substantial must be the municipal services and benefits furnished--only whether there was an 'affirmative showing." (emphasis not added).

'City of Cedar Rapids v. Cox, supra, at pages 950, 951 of 252 Iowa (948), page 255 of 108 N.W.2d (253), makes this statement which later decisions repeat with approval: 'The Legislature has not, and could not, under the Constitution delegate to courts the power to determine whether the proposed annexation is sound or unsound, good or bad. If the conditions prescribed by the Legislature have been met, the court must order annexation. If the conditions so prescribed have not been met, the court cannot order annexation.'

'The Cox opinion says of the statutory requirement that property may not be annexed for the sole purpose of increasing the city's tax revenue 'the fact that in the event of annexation the city's increased revenue may exceed its increased expense will not alone defeat annexation' (page 960 of 252 Iowa, page 260 of 108 N.W.2d).

'Town of Coralville v. Great Lakes Pipe Line Co., supra, at page 29 of 253 Iowa (23), page 379 of 110 N.W.2d (375) observes, 'The issue is the capability of the municipal corporation and not the need of the property owner."

The burden is upon the municipality to prove by a preponderance of the evidence it is capable of furnishing to the area the required services and benefits and this question of capability is to be determined as of the time the annexation proceedings are initiated, here May 28, 1962, not at the time of trial in the fall of 1965. Cedar Falls case and citations at pages 118--119 of 144 N.W.2d.

III. Bettendorf adjoins the larger city of Davenport on the east. Approximately the north half of Davenport's east city limit also extends north two and a half miles from the center of Bettendort's north line of about two miles. The Mississippi river flows west-southwest to form the south boundary of both cities and separates them from Rock Island and Moline, Illinois. East Moline adjoins Moline on the east, separated from the south-southeasterly line of the annexed area by the Mississippi. These two Iowa cities and the three in Illinois are often referred to as the Quad Cities.

The annexed area adjoins Bettendorf on the east and extends east approximately three miles. The north line of most of the area is 440 feet north of the north line of Bettendorf. The irregular south line of the annexed area is, from the west, the city of Bettendorf, the town of Riverdale (1960 population 477) and the Mississippi.

The accompanying plat taken from plaintiff's Exhibit A may help to visualize the physical situation.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

It is apparent from the plat and what has been said that if Bettendorf is to enlarge it cannot go south because of the river nor west because of the larger city of Davenport. It must go either north-northeast, or east as it has done. Defendants say it would have been better for plaintiff to go north rather than east. However, as the trial court correctly observed, if the city is justified in enlarging its limits it is not for the trial court or defendants to say in which direction it goes. As defendants apparently concede, selection of the adjoining territory to be annexed is a legislative matter for the city to determine.

'* * * neither the trial court nor this court has any discretion as to what should or should not be annexed.' City of Cedar Rapids v. Cox, 252 Iowa 948, 950, 108 N.W.2d 253, 255, cert. den. 368 U.S. 3, 82 S.Ct. 16, 7 L.Ed.2d 17.

IV. As before indicated, we are satisfied the city has made the required affirmative showing it was capable as of May 28, 1962, of extending into the annexed territory substantial municipal services and benefits not theretofore enjoyed. We will mention the principal ones.

The city had a well equipped and trained volunteer fire department of 20 men, including a chief who had served as such more than 30 years and three assistant chiefs. The newest members had served 5 years. All had received training in fire fighting at Iowa State University. During working hours six men were within two blocks of the fire station. The department has four motor vehicles, including two 'pumpers' designed for use in areas without water mains. Fire calls are received 24 hours a day and go to both the fire and police personnel in seconds. The fire chief testified the department was capable on May 28, 1962 of extending to the annexed area the same services the city was then receiving. He would, however, add five or six men to the department, get a smaller, lighter truck to precede the heavier ones to a fire, and build a fire station in the area at an estimated cost of $40,000.

The annexed area had no city fire protection but was served by the Pleasant Valley Township Fire District which was capable of handling fires in the area. However it did not have a round-the-clock alarm system. The area had a Class 10 (the highest) fire insurance premium rate, with no accessible water mains or fire hydrants, as compared to the city's 5 to 6, and Davenport's 3 to 4, rate.

Bettendorf's ordinances required use of the best electrical wiring and prohibited use of wooden shingles. The area had no comparable protection.

On May 28, 1962 the city had a police force of eight trained men, two of whom were on simultaneous duty on shifts of eight hours, including a chief and sergeant, and four police women who were also on duty in eight-hour shifts. The women take all radio and phone calls, operate the radios and phones and relay the calls to the three fully equipped squad cars. These cars were in constant contact with each other and police in the other Quad Cities and surrounding sheriffs' departments. The squad cars patrol the city at least several times daily.

All members of the department are examined by the Civil Service Commission and have the benefit of a retirement system administered by a city-created board.

Bettendorf also had an anxiliary police force of 15 men equipped with a late model station wagon, and a boat for river patrol...