City of Des Moines v. Lampart

• Decision Date: 07 May 1957
• Docket Number: No. 49222,49222
• Citation: 248 Iowa 1032,82 N.W.2d 720
• Parties: CITY OF DES MOINES, Appellee, v. Karl LAMPART, Defendant, Mrs. Volney (Marguerite) Diltz, Reuben M. Short, Jessie F. Harlow, Donald Harlow, R. T. Gracey, Lawrence H. Hammond, Homer D. Prowitt, Jesse O. Kinton, and Orville Jones, Appellants.
• Court: Iowa Supreme Court

Page 720

82 N.W.2d 720

248 Iowa 1032

CITY OF DES MOINES, Appellee, v. Karl LAMPART, Defendant Mrs. Volney (Marguerite) Diltz, Reuben M. Short, Jessie F. Harlow, Donald Harlow, R. T. Gracey, Lawrence H. Hammond, Homer D. Prowitt, Jesse O. Kinton, and Orville Jones, Appellants.

No. 49222.

Supreme Court of Iowa.

May 7, 1957.

Rehearing Denied June 7, 1957.

Volney Diltz, Des Moines, and W. W. Bulman, Chariton, for appellants.

Milton W. Strickler, Corp. Counsel, Anthony T. Renda, City Solicitor, and Dale L. Spencer, Asst. City Solicitor, Des Moines, for appellee.

SMITH, Justice.

Before proceeding to a discussion of the Record in the instant case, we deem a preliminary discussion of the Code, § 362.26, I.C.A., the constitutionality of which is involved, will be helpful. This is especially true because it was materially amended, effective July 4, 1953, by Acts of the 55th General Assembly. The amendment changed what was formerly paragraph 3 of the old section to what is now paragraph 6. The old section had just been held unconstitutional because it left to the court the determination of the desirability of the proposed annexation without prescribing the conditions precedent to such determination. It was held unwarranted delegation of legislative power to the court. State ex rel. Klise v. Town of Riverdale, 244 Iowa 423, 57 N.W.2d 63.

[248 Iowa 1034] Paragraph 3 of the section before the amendment, read as follows: '3. If the court finds in favor of annexation of such territory or any part thereof, it shall enter a decree accordingly, and if not, the petition shall be dismissed. * * *.'

Paragraph 6 which replaced it now provides: '6. If the court finds that there is 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 [italics supplied]; 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.'

Both before and after amendment the subsection contained the same closing provision concerning taxation of court costs, immaterial here. The changes in the subsections preceding what is now paragraph 6 also seem practically not involved in the appeal.

The constitutionality of present paragraph 6 of Code, § 362.26, I.C.A. is subjected here to the same attack as was the former paragraph 3 before amendment. Defendants' brief in division I says paragraph 6 'attempts to delegate wholly legislative powers to the judicial branch of the government in violation of section 1 (* * *) of article III of the Constitution [I.C.A.].'

A second division of appellants' brief alleges that plaintiff's petition fails to state a cause of action but does not argue the point, conceding it relates to the same contention (of unconstitutionality) as made in division I of their brief.

Defendants are owners of various lots and parcels of ground in a platted but unincorporated area in Bloomfield Township, outside but adjoining plaintiff's present corporate limits. The area is composed of about seven and one-half square miles of ground, has a population of approximately 14,000 (defendants say 16,000) and some 4,000 family dwellings; also, we are told in argument, fifty miles of streets and ten million dollars assessed valuation of property.

There is practically no conflict in the Record except such as reflects differences of wishes or prejudices as to the proposed annexation.

Plaintiff's petition alleges it is capable of extending to the territory sought to be annexed, various substantial municipal services and benefits not theretofore enjoyed by it such as efficient management of local affairs, permanent registration of voters, land use and zoning controls, police service and fire protection and numerous others not necessary to enumerate.

Defendants concede that if the statute be found constitutional 'the court did have practically unlimited discretion' and 'the evidence herein presented would probably be sufficient foundation for the use of that discretion in arriving at its Findings of Fact, Conclusions of Law, and the Decree herein entered.'

With this concession from appellants we need not cumber the Record with lengthy recitals of fact. Of course we cannot agree that the court would have any 'unlimited discretion' to decree annexation. Its function would be to determine as to the existence of the prescribed conditions precedent to annexation. The court's findings detail the proceedings in full commencing with the city council's 'Resolution providing for public hearing and notice on annexation of territory in Bloomfield Township,' the giving of notice, holding of the hearing pursuant thereto to consider the question of the proposed annexation, the hearing of objectors and proponents, adoption of the resolution by the city council, submission of the question to the voters of the city at the regular municipal election and favorable vote thereon, a lengthy, detailed recital of the favorable considerations and the final submission of this suit in equity instituted pursuant to Code, § 362.26, I.C.A.

There can be no doubt under the Record that plaintiff has complied with the requirements of other parts of the statute that precede paragraph 6 which is directly attacked. We may, too, disregard lettered subdivisions A, B and C of defendants' Division I as they discuss propositions not fundamentally disputed or disputable, viz.: The legislative character of the power of annexation; that its exercise cannot be delegated to the judiciary; and that when some duty in connection with a legislative operation is so entrusted to the court it is limited to the performance of fact-finding functions judicial in character.

I. Our court has upheld the power of the legislature to provide for extension of municipal boundaries without the assent of the inhabitants of either area. Peterson v. Swan, 231 Iowa 745, 753, 2 N.W.2d 70; Wertz v. City of Ottumwa, 201 Iowa 947, 951, 208 N.W. 511, 513; and in a very early (1850) case we said where the owner of land adjoining a municipality plats it into lots to be occupied by dwellings, he cannot object to a statute extending the authority of the local government over it. Morford v. Unger, 8 Iowa 82, 87.

II. Defendants lean heavily on State ex rel. Klise v. Riverdale, supra. It is sound and makes quite unnecessary their arguments on the fundamental principles condemning the delegation of the legislative power of municipalities to annex territory. But they frankly concede the real question is whether those principles are applicable to the amended statute.

The amendment on the heels of the Riverdale decision surely justifies a suspicion its purpose was to correct the very flaw in the old statute pointed out in that decision. But...