Hanson v. City of Cresco

• Decision Date: 14 December 1906
• Citation: 109 N.W. 1109,132 Iowa 533
• Parties: HANSON ET AL. v. CITY OF CRESCO.
• Court: Iowa Supreme Court

132 Iowa 533

109 N.W. 1109

HANSON ET AL.

v.CITY OF CRESCO.

Supreme Court of Iowa.

Dec. 14, 1906.

Appeal from District Court, Howard County; A. N. Hobson, Judge.

This is a proceeding under the provisions of Code, § 622, for the severance of territory from the defendant city. There was a trial to a jury, resulting in a verdict against the proposed severance, and from the judgment on such verdict the plaintiffs appeal. Reversed.Converse & Grannis, for appellants.

W. L. Barker and C. W. Reed, for appellee.

McCLAIN, C. J.

The plaintiffs, as resident property holders of that part of defendant city which they ask to have severed from the city, allege that the land is not needed for city purposes, and is not platted, and is used exclusively for agricultural purposes, and not needed for any possible increase of the city population, nor benefited by being in the corporation. In support of the allegations of their petition, they sought to show that, although their property was not taxed for city purposes (see Code, § 616), nevertheless, it was taxed at a higher valuation on account of being within the city limits than it would be taxed if it were outside of the limits of the city, and they complain of the refusal of the court to allow such evidence to be introduced. They also complain of the rejection of evidence as to why the territory, the severance of which is asked, was originally annexed to the city. Defendant introduced evidence to show that a 10-acre tract, included within the territory to be severed, was owned and used by the city as a garbage lot, and as the location of a pesthouse, and was also allowed to show that the city is establishing a system of sewers for which an outlet through the territory in question will be necessary, and the court instructed the jury that, in arriving at a verdict, they should consider the needs of the city for sewerage and sanitary purposes, and the question of municipal control over the garbage lot, pesthouse, and proposed sewers; that the wishes of the owners of the land should not be permitted to control as against the probable needs of the city in the future for sewerage and sanitary purposes, and the importance of the city having jurisdiction of the territory in question for the various purposes accomplished by the exercise of the police powers of the city; and that, under the law, in case the territory in question should be severed, the city of Cresco could not maintain or continue to use the pesthouse at its present location if such use should be objected to by the officials of Vernon township within which the territory to be severed is located, which fact they should carefully consider, and give due weight.

1. There was no error in refusing to receive the evidence offered to show that the township assessors do not fix real estate values at the actual vale of the property, and that the rate of taxation on the property of petitioners was therefore higher within the city limits on account of the city assessor listing the land in question at its actual value. “We cannot presume that appellants will be taxed upon other than a fair valuation, nor that if so taxed the equalization boards will not offer them proper relief.” Christ v. Webster City, 105 Iowa, 119, 74 N. W. 743; and, see Monk v. Incorporated Town of George, 86 Iowa, 315, 53 N. W. 240;Johnson v. Town of Forest City (Iowa) 105 N. W. 353. Evidence that, as a matter of fact, lands in Vernon township were not taxed at their full valuation would clearly not be competent, for it must be conclusively presumed that the township assessors as well as the city assessors will perform their duty, or that if they negligently or wrongfully act in the discharge of their duty the error can be corrected in the proper form of procedure.

2. The offered testimony as to how the territory in question came to be within the limits of the corporation could surely be of no significance in determining whether it should be severed. No matter what the motive for its original annexation, if it is now proper that it be retained, the petition for severance should be denied.

3. The real difficulty in the case arises out of the changed relation of the city to the territory in question which will result from severance as to the maintenance of sewers through such territory, and the use of the 10-acre tract belonging to the city for garbage disposal, and as a location for the city pesthouse. We think, however, that the question of sewerage is not controlling, for by chapter 37, p. 28, Acts of Thirtieth Gen. Assem. (1904), it is provided that cities and towns shall have the power to acquire real estate outside of the territorial limits, necessary for sewer outlets, and having acquired such territory, we see no reason why the defendant city could not maintain its sewers through the property thus acquired for that purpose regardless of whether it should be within or outside of the limits of the city. The same statute authorizes the acquisition of real estate outside of the city limits for garbage disposal plants and dump grounds, and the same considerations apply as with reference to sewer outlets. Perhaps the city would not be allowed to maintain a nuisance to the annoyance of occupants of neighboring property, but the same objection could be made to the improper use of the garbage lot if it remained within the city limits. In assuming therefore that the needs of the city for sewerage and sanitary purposes might be interfered with by the severance of the territory, we think the court erred.

There was further error, as we think, in the statement by the court in its instructions, as a matter of law, that the city could not after severance of the territory including the 10-acre tract on which the pesthouse is located, maintain, or continue to use the pesthouse on such lot if objected to by the officials of the township. This statement of the law was undoubtedly correct prior to the enactment of chapter 108, p. 68, Laws of Twenty-Ninth Gen. Assem. (1902) (Code. Supp. 1902, § 2575 a, b), for it was held in Warner v. Stebbins, 111 Iowa, 86, 82 N. W. 457, that the trustees of a township might enjoin the health officers of a city from maintaining a pesthouse within the limits of their township and outside of the city limits. But the statute just referred to is as follows:

“Section 1. When a controversy arises between municipalities or between boards of health thereof, respecting the location of pesthouses or hospitals for the treatment of infectious or contagious diseases, such matter shall be referred to the president of the state board of health, who shall forthwith appoint a committee of three members thereof, which committee shall upon two days' notice to the parties interested, investigate the matter and make such order in the premises as the facts warrant, and such order shall be final.

Sec. 2. The health officers of the municipality which is allowed to maintain a pesthouse or hospital for patients affected by infectious or contagious diseases outside the limits of said municipality, shall have exclusive jurisdiction and control of such pesthouse or hospital for the enforcement of all sanitary and health regulations.”

If this statute is applicable as between the defendant and the township of which the territory to be severed is a part, then it does not follow as a matter of law that the severance of the territory including the 10-acre tract on which the pesthouse is located will necessarily result in the abandonment of the use of the pesthouse if objected to by the officers of the township, for it might be that, under the provisions of the statute, the city would be allowed to maintain its pesthouse in its present location. In determining whether the statute is applicable as between a city and a township, the difficulty is in the intrepretation of the term “municipality.” If the township is a municipality, then the statute, by its terms, applies to the present case; otherwise, it does not.

“A municipal corporation, in its strict and proper sense, is the body politic and corporate constituted by the incorporation of the inhabitants of a city or town for the purpose of local government thereof.” 1 Dillon, Municipal Corporations (4th Ed.) § 19.

The term involves the idea of voluntary association by the inhabitants of particular territory, sanctioned by the power of the state for the purposes of local self-government. But the sovereign power may, without regard to any prior agreement or action on the part of the inhabitants of the territory involved, provide for the exercise of powers such as the election of local officers by the inhabitants of such local subdivisions, and these organizations, though public in character, and partaking somewhat of the nature of a corporation, are not, strictly speaking, corporations, but quasi corporations. “The municipal corporation possesses a corporate capacity and an identity distinct from the state, while the quasi corporation is but one of the members or parts of the state, having no distinct identity. It is, in all respects, a mere agency, having no voice in its own creation. * * * The real distinction between the municipal corporation, properly so called, and the local organizations, such as unincorporated townships, school districts, and counties, consists in the fact that the municipal corporation is a voluntary...