City of Muscatine v. Waters

Decision Date16 March 1977
Docket NumberNo. 2-57636,2-57636
Citation251 N.W.2d 544
PartiesCITY OF MUSCATINE, Iowa, a Municipal Corporation, Appellee, v. Leroy A. WATERS et al., Defendants, Richard A. Drawbaugh et al., Appellants.
CourtIowa Supreme Court

W. H. Bartley and T. L. Hinman, of Bartley, Bartley & Hinman, Iowa City, for appellants.

Harvey G. Allbee, Jr., City Atty., and Jon R. Pearce, Muscatine, for appellee.


RAWLINGS, Justice.

Richard A. Drawbaugh, et al. (defendants), appeal from decree of annexation upon petition filed by plaintiff, City of Muscatine. A partially conflicting purported voluntary annexation of real estate by the City of Fruitland was held to be ineffectively subordinate to the proceedings previously initiated by Muscatine. We affirm.

The involved facts are not in dispute. Muscatine is a municipal corporation.

July 20, 1972, its city council adopted a resolution directing the city clerk to publish notice of hearing on the annexation proposal as to the entire area here concerned, adjacent and contiguous to the City of Muscatine. Despite the mayor's veto the resolution was repassed July 24, by the city council.

August 2 and 9, notice of hearing on the adopted resolution was published. August 17, hearing thereon was held.

September 20, Fruitland adopted a resolution purporting to annex, by voluntary petition, approximately 64 acres of real estate (Strauseland), included within the territory embraced in the July 24, Muscatine resolution. These appealing defendants hold a possessory interest in Strauseland realty.

September 21, Muscatine passed another resolution ordering an election on the proposed annexation be held November 7, 1972. Additionally, the city clerk was directed to publish notice of such election pursuant to Section 362.26(3), The Code 1973. This publication was never effected.

November 7, after extensive election-related countywide publicity, the Muscatine annexation proposal was approved by a majority of eligible voters.

February 15, 1973, absence of the aforesaid election notice having been discovered, Muscatine adopted a second annexation resolution covering all of the original territory except the Strauseland tract. No further action was ever taken on the above noted second Muscatine resolution. It apparently died on the vine.

March 15, Muscatine adopted another resolution, this time authorizing effectuation of remedial legislative action to cure errors attendant upon its 1972 annexation election.

June 19, the Sixty-Fifth General Assembly, 1973 Session, adopted House File 732, thereby legalizing the aforesaid November 7, 1972, Muscatine election. This Act became effective July 5, 1973.

August 3, the involved Muscatine annexation petition was filed in Muscatine District Court. Code § 362.26(4), (5), (6).

May 6, 1974, or about 11 months after adoption of House File 732 and less than 24 hours before commencement of hearing on Muscatine's August 3, 1973 petition, Fruitland filed a certified copy of its September 20, 1972, resolution in the Muscatine County Recorder's office. Code § 362.33. See also Chapter 368, The Code 1975, not here applicable.

No question is raised regarding Muscatine's ability to provide substantial municipal services and benefits not previously enjoyed by inhabitants of the entire proposed annexed area. And, defendants do not contend such territorial extension is sought by Muscatine merely for the purpose of increasing tax revenues.

Mindful of the foregoing, we turn now to these issues raised on appeal from adjudication by trial court adverse to defendants:

A. Whether Muscatine obtained exclusive jurisdiction over the entire area proposed to be annexed, thereby preempting Fruitland's authority to annex the 64 acre Strauseland tract.

B. Whether House File 732, by curing procedural defects in the 1972 election, retroactively conferred upon Muscatine renewed jurisdiction to annex the entire area.

C. Whether an error in legal description of the area involved in the Muscatine procedure invalidates these proceedings.

D. Whether Muscatine abandoned its exclusive jurisdiction over the disputed area or is estopped from asserting same.

I. Our review is de novo. We accord weight to trial court's findings but are not thereby bound. See City of Decorah v. Peterson, 203 N.W.2d 629, 631 (Iowa 1973).

It is also understood annexation is purely statutory. The legislature prescribes conditions under which a municipality may so extend its borders. See Town of Grimes v. Bd. of Adjustment, Polk Cty., 243 N.W.2d 625, 629 (Iowa 1976). At the time here in question ch. 362, The Code 1973 (since repealed) regulated the involved processes.

II. Defendants concede Muscatine took the initial step toward annexation by adoption of the July 24, 1972, resolution directing its city clerk to publish notice of hearing. See State ex rel. Mercer v. Town of Crestwood, 248 Iowa 627, 632-635, 80 N.W.2d 489 and 81 N.W.2d 452 (Supp. Opin.) (1957).

Where, as in this case, there is a dispute between two municipalities as to which has the right to annex a given territory, the one first initiating such proceedings thereby obtains exclusive annexation jurisdiction. See Town of Grimes v. Bd. of Adjustment, Polk Cty., 243 N.W.2d at 629. Moreover, the entity first so legislatively acting ordinarily has the select right to complete its initiated program. See State ex rel. Mercer v. Town of Crestwood, 248 Iowa at 632-633, 80 N.W.2d 489; Town of Clive v. Colby, 255 Iowa 483, 493, 121 N.W.2d 115 and 123 N.W.2d 331 (Supp. Opin.) (1963).

On the other hand, substantial compliance with statutory requirements is usually essential to the above noted prior annexing jurisdiction. See City of Clinton v. Owners of Property, Etc., 191 N.W.2d 671, 674 (Iowa 1971). As stated in Town of Clive v. Colby, 255 Iowa at 496, 123 N.W.2d at 333:

" 'A proceeding for the annexation of territory to a contiguous municipal corporation is ineffectual when instituted after the institution of a proceeding for the organization of the territory into a village or city, and while such proceeding is pending and undetermined. However, annexation proceedings are not precluded where the pending incorporation proceedings do not comply with the statute, or are otherwise insufficient to deprive the annexing city of jurisdiction or authority to acquire the territory involved.' (Emphasis added)."

See generally J. Yeager, "City and Town Boundaries Incorporation, Consolidation, Annexation, and Severance Under the Iowa Statutes", 19 Drake L.Rev. 1, 16-17 (1969).

Thus, a municipality has exclusive jurisdiction to annex a given territory from the time its council directs publication of the required notice, but only if it is able to show existence of all "necessary jurisdictional facts". See 19 Drake L.Rev., at 17. See also City of Clinton v. Owners of Property, Etc., 191 N.W.2d at 677.

III. This brings us to an analysis of the above cited curative legislation.

House File 732 provides, in relevant part:

"WHEREAS, doubts have arisen concerning the validity and legal sufficiency of the proceedings of the City Council preliminary to such election and the validity and legal sufficiency of such election and it is deemed advisable to put such doubts and all others that might arise concerning same forever at rest; NOW, THEREFORE,

"Be It Enacted by the General Assembly of the State of Iowa:

"SECTION 1. That all proceedings heretofore taken by the City Council of the City of Muscatine, Iowa, preliminary to and in connection with the election on the proposition of annexing the aforedescribed territory to the City of Muscatine, on November 7, 1972, and said election, are hereby legalized, validated and confirmed."

Defendants contend this legalizing Act cured nothing more than procedural flaws and did not retroactively vest renewed exclusive jurisdiction in Muscatine to annex the entire proposed area. Conversely, Muscatine argues the Act would be a complete nullity if it did not assure continuity of original and exclusive jurisdiction.

Prefatorily noted is an apt statement in 2 Sutherland, Statutory Construction, § 41.11 (4th ed. 1973):

"Generally, curative acts are made necessary by inadvertence or error in the original enactment of a statute or in its administration. Action under the statute is usually taken in good faith and no rights are jeopardized by the validation of the prior good faith action. Because of the beneficent policy thus served by curative legislation, to sustain the reliability of official actions and secure expectations formed in reliance thereon, they are in reason entitled to liberal construction in order to achieve full fruition of their remedial purposes."

This court also considered the character of such legislation in McSurely v. McGrew, 140 Iowa 163, 172, 118 N.W. 415, 419 (1908), and there stated:

"It is a little difficult to define a curative act. It is necessarily retrospective in character and undertakes to cure or validate errors or irregularities in legal or administrative proceedings, and to give effect to contracts for failure to comply with some technical requirement. Meigs v. Roberts, 162 N.Y. 371, 56 N.E. 838, 76 Am.St.Rep. 322. If the defects are jurisdictional or relate to substantive contract rights, they can not ordinarily be cured by a healing act. Generally speaking, the Legislature may by subsequent act validate and confirm previous acts of a corporation otherwise invalid. Bridgeport v. Railroad, 15 Conn. 475; Mattingly v. Dist. of Col., 97 U.S. 687, 24 L.Ed. 1098; McMillen v. Boyles, 6 Iowa 304; Id., 391; Atchison v. Butcher, 3 Kan. 104; San Francisco v. Real Estate, 42 Cal. (513); Anderson v. Santa Anna, 116 U.S. (356), 6 S.Ct. 413, 29 L.Ed. 633. This is in accord with the general rule that a curative act may be passed whenever the irregularity to be healed consists in the doing of some act, or the doing of it in such a manner as the Legislature...

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