City of Cedar Rapids v. Cox

Decision Date18 November 1958
Docket NumberNo. 49413,49413
Citation93 N.W.2d 216,250 Iowa 457
PartiesCITY OF CEDAR RAPIDS, Appellee and Cross-Appellant, v. Ann COX et al., Defendants, Roger L. Anderson et al., Appellants.
CourtIowa Supreme Court

Ernest F. Pence, Wm. W. Crissman, James E. Bromwell, and O. W. Lawrence, Cedar Rapids, for appellants Roger L. Anderson et al.

C. W. Garberson and W. M. Dallas, Cedar Rapids, for appellee and cross-appellant City of Cedar Rapids.

GARFIELD, Chief Justice.

Plaintiff, City of Cedar Rapids, filed its petition in equity in the district court pursuant to section 362.26, subd. 4, Code 1954, I.C.A., for a decree annexing about 13 square miles of unincorporated adjacent territory to the city. About 100 defendants, Roger L. Anderson et al., filed special appearance alleging they were not served with sufficient original notice of the suit in that it was served by publication pursuant to Code, section 362.27, I.C.A., and this statute is unconstitutional as a denial of due process guaranteed by the 14th amendment to the federal constitution and Article I, section 9, Iowa constitution, I.C.A.

Section 362.27 provides notice of filing a petition asking a decree of annexation shall be served by publication once a week for three consecutive weeks in a newspaper of general circulation. See also sections 618.3, 618.14. In accordance with the statute notice was published in the Cedar Rapids Gazette, the city's daily newspaper.

Rule 60.1, Rules of Civil Procedure, provides that where service of original notice is made upon a known defendant copy of the notice shall also be sent him by ordinary mail unless affidavit is filed stating no mailing address is known and diligent search has been made to ascertain it. The parties do not agree as to whether the record properly shows compliance with rule 60.1 as to these defendants-appellants who are among 537 persons made parties, as hereinafter explained, subsequent to commencement of the action to which there were originally about 1500 defendants. Proof of mailing notice to defendants Roger L. Anderson et al. was not filed until after they took their appeal to this court.

We find it unnecessary to decide whether there was compliance with rule 60.1 as to these defendants-appellants. Indeed we may assume there was not such compliance. The record does show, however, that proof of mailing notice to all but 18 of the approximately 1500 original defendants was filed long before the filing of appellants' special appearance.

The trial court overruled defendants' special appearance. It also overruled their motion to dismiss. These defendants then filed their election to stand on the record theretofore made and appealed to us. See rule 86, R.C.P. They first assign as error the ruling on the special appearance.

I. The question presented is whether section 362.27 providing for notice of such an action as this by publication once a week for three consecutive weeks in a newspaper of general circulation violates the due process requirements of the federal and state constitutions. We affirm the trial court's negative answer to this question.

Defendants' main reliance is upon the decision in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865, where a New York statute, Banking Law, § 100-c, providing for notice by publication to beneficiaries of a common trust fund of a trust company's petition for settlement of its accounts is held to violate due process as to beneficiaries whose whereabouts are known. Some other precedents which follow the Mullane case are also relied upon. We think the Mullane decision is not applicable here.

We have held failure to provide for any notice and hearing on the question of annexation of territory to a municipality does not deprive owners of their property without due process of law. Wertz v. City of Ottumwa, 201 Iowa 947, 950-954, 208 N.W. 511. We said (at page 952 of 201 Iowa, at page 514 of 208 N.W.) the case was somewhat analogous to those where boundaries of school corporations may be changed by action of the boards of directors. See Peterson v. Swan, 231 Iowa 745, 752-753, 2 N.W.2d 70, 74, which quotes from the Wertz opinion. An early case, Morford v. Unger, 8 Iowa 82, 88-89, holds the power of the legislature to create or enlarge boundaries of municipalities does not depend upon consent of the inhabitants. City of Tucson v. Garrett, 77 Ariz. 73, 267 P.2d 717, 719, holds notice or consent are unnecessary.

The Iowa precedents just cited are approved in City of Des Moines v. Lampart, 248 Iowa 1032, 1036, 82 N.W.2d 720, 722.

If, as we have held, extension of municipal boundaries without assent of or any notice to the inhabitants is not a denial of due process, certainly annexation upon published notice does not have that result.

Our prior decisions are in harmony with Hunter v. City of Pittsburgh, 207 U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151, which holds the state may authorize the extension of the territorial area of a municipal corporation with or without the consent of the citizens or even against their protest, unrestrained by any provision of the federal constitution. The opinion states (at page 179 of 207 U.S., at page 46 of 28 S.Ct., at page 159 of 52 L.Ed.):

'Although the inhabitants and property owners may, by such changes, suffer inconvenience, and their property may be lessened in value by the burden of increased taxation, or for any other reason, they have no right, * * * in the unaltered or continued existence of the corporation or its powers, and there is nothing in the Federal Constitution which protects them from these injurious consequences.' See also Seward County Rural Fire Protection Dist. v. Seward County, 156 Neb. 516, 56 N.W.2d 700, 705-706; Annotation, 64 A.L.R. 1335, 1358-1360.

We think there is another consideration upon which the Mullane decision is not controlling here. There the only notice was the statutory published notice which was not reasonably calculated, under the circumstances, to reach the parties in interest. The Mullane opinion observes (at page 319 of 339 U.S., at page 659 of 70 S.Ct., at page 876 of 94 L.Ed.):

'Therefore notice reasonably certain to reach most of those interested in objecting is likely to safeguard the interests of all since any objection sustained would inure to the benefit of all. * * *

'The statutory notice to known beneficiaries is inadequate, not because in fact it fails to reach everyone, but because under the circumstances it is not reasonably calculated to reach those who could easily be informed by other means at hand.'

Here, as previously indicated, it appears that all but 18 of the approximately 1500 original defendants were given notice by mail pursuant to rule 60.1. Further, the filing of the petition in court was preceded by other published notices, by proceedings of the city council and by a citywide election on the proposition of annexing the whole territory to the city.

There was first introduced before the council a proposed resolution to annex about two square miles of the territory in question. Notice was given by two publications in the Cedar Rapids Gazette of the time and place of considering this resolution. Five days after this hearing a second proposed resolution was introduced for the annexation of the remaining, approximately 11 square miles of territory in question. Like notice was published of the time and place of considering this resolution. Notice of the election was given by publication once a week for three consecutive weeks in the Gazette. See Code, section 362.26, I.C.A. Filing of the petition in court followed the election.

It is true neither of the notices of the proposed resolutions just referred to described the whole 13 square miles of area now sought to be annexed. One notice described the two square miles and the other the remaining 11 square miles. Notice of the election, however, referred to the entire territory.

We think it may not fairly be said that notice by publication upon defendants-appellants of the filing of the petition in court, following as it did notice by mail to nearly all the 1500 original defendants, three other published notices and a citywide election, was not reasonably calculated to reach nearly all the parties in interest. Incidentally we may observe it is reasonable to conclude that wide publicity, through the news columns, radio, television and by word of mouth, attended the proposal to annex such a large area to a city like Cedar Rapids.

To uphold the contention of appellants now considered might put in jeopardy numerous decrees of annexation on notice by publication. Obviously we should not reach a decision of such far-reaching implications unless the right thereto is clear. See In re Estate of Pierce, 245 Iowa 22, 28, 60 N.W.2d 894, 898.

We hold defendants-appellants were not denied constitutional guarantees of due process in the matter of notice of the filing of the petition in court.

II. One ground of defendants' motion to dismiss asserts plaintiff commenced two separate annexation proceedings and combined them into one proceeding for purposes of the popular election and trial to the court, such merger of proceedings does not conform to the requirements of section 362.26, 1 and 2, the proceedings are therefore void. Overruling this ground of the motion is the second assigned error.

As previously explained, it was first proposed to annex about two square miles and five days after the hearing on such proposal it was proposed to annex the remaining 11 square miles here involved. The two tracts are contiguous. Statutory notice of the hearing on each proposal was given and each hearing was held. At an adjourned meeting on the day the second hearing was held (October 6) it was ordered an election be held on the annexation of the entire 13 square miles.

Defendants contend they were entitled to notice of a hearing before the council of a proposal to...

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