Dunn v. Burbank

• Decision Date: 29 November 1920
• Docket Number: 33026.,Nos. 33025,s. 33025
• Citation: 179 N.W. 969,190 Iowa 67
• Parties: DUNN v. BURBANK, BLACK HAWK COUNTY TREASURER (INDEPENDENT SCHOOL DIST. OF CEDAR FALLS ET AL., INTERVENERS). INDEPENDENT SCHOOL DIST. OF CEDAR HEIGHTS ET AL. v. BURBANK, BLACK HAWK COUNTY TREASURER (INDEPENDENT SCHOOL DIST. OF CEDAR FALLS ET AL., INTERVENERS).
• Court: Iowa Supreme Court

190 Iowa 67

179 N.W. 969

DUNN

v.BURBANK, BLACK HAWK COUNTY TREASURER (INDEPENDENT SCHOOL DIST. OF CEDAR FALLS ET AL., INTERVENERS).

INDEPENDENT SCHOOL DIST. OF CEDAR HEIGHTS ET AL.

v.BURBANK, BLACK HAWK COUNTY TREASURER (INDEPENDENT SCHOOL DIST. OF CEDAR FALLS ET AL., INTERVENERS).

Nos. 33025, 33026.

Supreme Court of Iowa.

Nov. 29, 1920.

Appeal from District Court, Black Hawk County; H. B. Boies, Judge.

The appeals in these cases present different phases of a controversy over the same subject-matter, the nature of which and the facts material to its consideration are stated in the following opinion. The appeals have been submitted together in this court, and are disposed of in one opinion. Affirmed.Courtright & Arbuckle, of Waterloo, and Martin & Turnipseed, of Cedar Falls, for appellant Independent Dist. of Cedar Falls.

C. M. Parker, J. B. Newman, and W. H. Merner, all of Cedar Falls, for appellant City of Cedar Falls.

Williams & Clark and Pickett, Swisher & Farwell, all of Waterloo, for plaintiff appellee.

E. J. Wenner and Walter French, both of Waterloo, for defendant appellee.

WEAVER, C. J.

The two cases above entitled grow out of a controversy which may be sufficiently explained as follows:

It stands conceded that on January 24, 1916, and at a time when no movement had been inaugurated for an extension of the territorial limits of the city of Cedar Falls, inhabitants of certain territory outside of said limits began a statutory proceeding in the district court to incorporate such outside territory into a town, to be known as Cedar Heights. That proceeding appears to have been carried through to judgment, which was entered March 14, 1916, declaring the town of Cedar Heights duly incorporated, and confirming the election of its mayor and council. On February 19, 1916, while these proceedings for incorporation were still pending in court, the city council of Cedar Falls took action for the calling of an election for the extension of its corporate boundaries in a manner to include within such extension the territory of Cedar Heights, and on March 13, 1916, the day before the entry of the judgment above mentioned, an election was held, at which a majority of votes was declared cast for the proposed extension. Controversy at once arose between the city and school district of Cedar Falls on the one side and town and school district of Cedar Heights on the other, concerning their respective rights. The formerdenied and the latter affirmed the validity of the incorporation of the town, and each school district laid claim to the benefit of the taxes collected for school purposes within the territory of Cedar Heights. The county treasurer refusing to decide between the contending parties, the two actions named in the caption of this opinion were brought for an adjudication of the dispute. The first was brought by a resident and taxpayer of Cedar Heights, to enjoin the county treasurer from paying over to the Cedar Falls district any of the taxes collected by the county treasurer for school purposes on property within the Cedar Heights territory. The second action was brought in the name of the Cedar Heights school district and its official board for a writ of mandamus, compelling the county treasurer to pay over such school taxes to the treasurer of said district. In each case the city and school district of Cedar Falls intervened, resisting both the demand for injunction and for mandamus on the theory:

First. That the judgment declaring the due incorporation of Cedar Heights was rendered without jurisdiction, and therefore void, because the petition on which the court acted was not signed by 25 resident electors, as the statute requires, in that, while said petition was subscribed by 25 names, one of such subscribers was not a resident elector, and the petition was therefore fatally defective.

Second. That the fact that the election called by the city council was held on the day before the judgment affirming the incorporation was entered in the court proceeding had the effect to withdraw the territory of Cedar Heights from the jurisdiction of the court, and its order establishing the corporate character of the town was therefore void.

To this pleading or defense on part of the interveners, the plaintiffs in each case demurred. The demurrer in each instance was sustained, and the interveners not electing to plead over or amend, decree and judgment were entered as prayed. Both interveners appeal.

[1] Of the questions raised by the demurrer and discussed by counsel, the one which forces itself to the front, is that the defense which attempts to impeach the validity of the incorporation of Cedar Heights is one which is not available to the interveners in this case. Stated otherwise, it is objected by plaintiffs that the validity and regularity of the incorporation of the town are not open to attack in a collateral proceeding, but must be tested, if at all, by direct proceeding in quo warranto. That this is a correct statement of the rule which will be adhered to where the objection is taken in due time must be conceded. Nelson v. Dist., 181 Iowa, 424, 164 N. W. 874;Harvey v. Kirton, 182 Iowa, 977, 164 N. W. 888;Crawford v. Dist., 182 Iowa, 1325, 166 N. W. 702; 32 Cyc. 1415; Hammer v. Narverud, 142 Minn. 199, 171 N. W. 771.

That the point was made by the plaintiffs in the court below is not questioned, and, unless we must hold that this case does not fall within the scope of the rule, it compels an affirmance upon both appeals here under consideration. Counsel for appellants, recognizing the force of this suggestion, say that the intervention by the district of Cedar Falls “is not a direct attack upon the so-called town of Cedar Heights, or upon those who claim to represent it in an official capacity or upon the proceedings by which it claims to have effected its official existence.” They further say:

“The questions presented by the petition of intervention are merely emergent or incidental, and hence it is proper to seek relief in a court of equity; the action in quo warranto not being the only remedy available to intervener.”

But if, as the quoted language seems to concede, the corporate organization and capacity of Cedar Heights is not open to “direct attack” by the interveners in this proceeding, it is difficult to understand by what principle of law or upon what precedent we...