Iowa Power & Light Co. v. Incorporated Town of Pleasant Hill, No. 50383

CourtUnited States State Supreme Court of Iowa
Writing for the CourtTHORNTON; All Justices concur except BLISS
Citation253 Iowa 532,112 N.W.2d 304
PartiesIOWA POWER & LIGHT COMPANY, Appellee, v. INCORPORATED TOWN OF PLEASANT HILL, Iowa, Appellant.
Docket NumberNo. 50383
Decision Date12 December 1961

Page 304

112 N.W.2d 304
253 Iowa 532
IOWA POWER & LIGHT COMPANY, Appellee,
v.
INCORPORATED TOWN OF PLEASANT HILL, Iowa, Appellant.
No. 50383.
Supreme Court of Iowa.
Dec. 12, 1961.
Rehearing Denied Feb. 5, 1962.

[253 Iowa 533]

Page 305

Jas. W. Hall and Don C. Swanson, Des Moines, for appellant.

Bradshaw, Fowler, Proctor & Fairgrave, Des Moines, for appellee.

THORNTON, Justice.

Plaintiff, Iowa Power & Light Company, brought this action pursuant to section 362.32, Code of Iowa, 1958, I.C.A., to sever 135 acres of its land from defendant, Town of Pleasant Hill.

The trial court entered a decree granting severance. Defendant town appeals.

Defendant urges for reversal section 362.32 (all references are to the 1958 Code unless otherwise indicated) is unconstitutional and under the facts plaintiff was not entitled to have the area severed.

[253 Iowa 534] I. We by-pass the question of the right of defendant, a municipal corporation, to challenge the constitutionality of the statute. See: Brunner v. Floyd County, 226 Iowa 583, 284 N.W. 814; and State ex rel. Clinton Falls Nursery Co. v. Steele County Board of Commissioners, 181 Minn. 427, 232 N.W. 737, 71 A.L.R. 1190. We do so because the statute in its present form prescribes the facts which must exist in order for severance to be granted and requires the court to determine if these facts exist and if they do to decree severance. Such determination is a proper judicial function and does not constitute a delegation of legislative power to the courts. State ex rel. Klise v. Town of Riverdale, 244 Iowa 423, 57 N.W.2d 63; Town of Coralville v. Great Lakes Pipe Line Company, Iowa, 110 N.W.2d 375; State ex rel. Mercer v. Incorporated Town of Crestwood, 248 Iowa 627, 80 N.W.2d 489, 81 N.W.2d 452; and City of Des Moines v. Lampart, 248 Iowa 1032, 82 N.W.2d 720.

Page 306

Section 362.32 provides:

'Territory may be severed from any city or town by proceeding as follows:

'1. A majority of the resident property owners of such territory or the city or town may bring suit in equity in the district court therefor and the proceedings shall so far as applicable be the same as provided in sections 362.26 and 362.27. Notice of suit shall be such as the court may direct.

'2. If the court finds that such territory, or any part thereof, shall be severed from any city or town, * * *.'

The balance of subsection 2 and subsection 3 relate to the determination of the distribution of assets and assumption of liabilities as between the town or city and severed territory and have no bearing on the issue of severance.

Section 362.26 provides:

'Unincorporated territory adjoining any city or town may be annexed thereto and become a part thereof by proceeding as follows:'

Subsections 1, 2, and 3 provide for notice to the public of a council meeting to consider the question, the adoption of a resolution of annexation, and the submission of the question to the voters, and are inapplicable to severance.

[253 Iowa 535] '4. If the proposition is adopted by a majority of those voting thereon, the council shall cause to be filed in the district court, a suit in equity against the owners of the property proposed to be annexed, the petition therein setting forth that, under a resolution of the council, the territory therein described was authorized by the voters of said city to be annexed to the city or town.

'5. The petition shall contain:

'a. A description of the perimeter of the entire property proposed to be annexed and a list of each property owner therein as shown by the plat books in the office of the county auditor.

'b. A statement of facts showing that the municipal corporation is capable of extending into such territory substantial municipal services and benefits not theretofore enjoyed by such territory.

'c. A plat of such territory showing its relation to the corporate limits.

'd. That said annexation is not sought merely for the purpose of increasing the revenues from taxation of such municipal corporation.

'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; 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. No costs shall be taxed against any defendant who fails to make a defense.'

Since the Code of 1924 the severance statute has incorporated the annexation statute by reference. Sections 5617 and 5612 respectively of the Code of 1924. The reason is obvious, annexation and severance are opposites. Severance should not be granted where the facts are such the municipality would have the right to annex the territory sought to be severed. 62 C.J.S. Municipal Corporations § 48b, p. 145. Any [253 Iowa 536] other rule while the facts and circumstances remain the same would result in continuous litigation.

The reference provision of section 362.32 is, '* * * the proceedings shall so far as applicable be the same as provided in sections 362.26 and 362.27. * * *'. At this point defendant contends 'proceedings' refers only to matters of procedure and does not set up any standard to guide the court as a matter of substantive law. As the

Page 307

term 'proceedings' is here used and in light of the evident purpose of the legislation the statute should not be so construed. Both section 362.26, subsection 4, and section 362.32, subsection 1, provide a suit in equity shall be brought in district court. It is wholly unnecessary to direct equitable procedure by the reference in section 362.32. If the reference is to mean anything it must refer to the steps set forth in subsections 5 and 6 of section 362.26 relating to what the petition shall contain and the findings of the court. So construed we have a statute that is not reduced to an absurdity, meaningful effect is given to its provisions, adequate standards are set up for factual determination by the court, and legislative power is not delegated to the court. As supporting this construction, see: Dingman v. City of Council Bluffs, 249 Iowa 1121, 90 N.W.2d 742, and citations; Ferguson v. Brick, 248 Iowa 839, 82 N.W.2d 849, and citations; and Kerr v. Chilton, 249 Iowa 1159, 91 N.W.2d 579, and citations.

II. In recent annexation cases we have held the functions of the court are restricted to the findings of fact concerning two...

To continue reading

Request your trial
4 practice notes
  • Graham v. Worthington, No. 52330
    • United States
    • United States State Supreme Court of Iowa
    • 15 Noviembre 1966
    ...457; France v. Benter, 256 Iowa 534, 541, 128 [259 Iowa 855] N.W.2d 268; Iowa Power & Light Co. v. Incorporated Town of Pleasant Hill, 253 Iowa 532, 536, 112 N.W.2d 304; Appleby v. Farmers State Bank of Dows, 244 Iowa 288, 295, 56 N.W.2d 917; and Case v. Olson, 234 Iowa 869, 872--873, 1......
  • Calkins v. Adams County Co-op. Elec. Co., No. 52050
    • United States
    • United States State Supreme Court of Iowa
    • 14 Julio 1966
    ...is repeated in Jacobs v. Miller, 253 Iowa 213, 218, 111 N.W.2d 673. In Iowa Power & Light Co. v. Incorporated Town of Pleasant Hill, 253 Iowa 532, 536, 112 N.W.2d 304, 307, we approved a statutory construction 'that is not reduced to an absurdity, meaningful effect is given to its provi......
  • Central Iowa Power Co-op. v. City of Cedar Rapids, No. 50698
    • United States
    • United States State Supreme Court of Iowa
    • 24 Julio 1962
    ...Case v. Olson, 234 Iowa 869, 14 N.W.2d Page 426 717; and Iowa Power & Light Company v. Incorporated Town of Pleasant Hill, Iowa, 112 N.W.2d 304, 307, and It is not necessary to discuss the finality of the decree of annexation on July 19th as to the parties to the action. In any event it......
  • Town of Grimes v. Adel Clay Products Co., No. 51144
    • United States
    • United States State Supreme Court of Iowa
    • 11 Febrero 1964
    ...and Town of Clive v. Colby, Iowa, 121 N.W.2d 115, 123 N.W.2d 331. In Iowa Power & Light Company v. Incorporated Town of Pleasant Hill, 253 Iowa 532, 112 N.W.2d 304, a severance case, we considered the reverse. In City of Des Moines v. Lampart, 248 Iowa 1032, 1038, 82 N.W.2d 720, we held......
4 cases
  • Graham v. Worthington, No. 52330
    • United States
    • United States State Supreme Court of Iowa
    • 15 Noviembre 1966
    ...457; France v. Benter, 256 Iowa 534, 541, 128 [259 Iowa 855] N.W.2d 268; Iowa Power & Light Co. v. Incorporated Town of Pleasant Hill, 253 Iowa 532, 536, 112 N.W.2d 304; Appleby v. Farmers State Bank of Dows, 244 Iowa 288, 295, 56 N.W.2d 917; and Case v. Olson, 234 Iowa 869, 872--873, 1......
  • Calkins v. Adams County Co-op. Elec. Co., No. 52050
    • United States
    • United States State Supreme Court of Iowa
    • 14 Julio 1966
    ...is repeated in Jacobs v. Miller, 253 Iowa 213, 218, 111 N.W.2d 673. In Iowa Power & Light Co. v. Incorporated Town of Pleasant Hill, 253 Iowa 532, 536, 112 N.W.2d 304, 307, we approved a statutory construction 'that is not reduced to an absurdity, meaningful effect is given to its provi......
  • Central Iowa Power Co-op. v. City of Cedar Rapids, No. 50698
    • United States
    • United States State Supreme Court of Iowa
    • 24 Julio 1962
    ...Case v. Olson, 234 Iowa 869, 14 N.W.2d Page 426 717; and Iowa Power & Light Company v. Incorporated Town of Pleasant Hill, Iowa, 112 N.W.2d 304, 307, and It is not necessary to discuss the finality of the decree of annexation on July 19th as to the parties to the action. In any event it......
  • Town of Grimes v. Adel Clay Products Co., No. 51144
    • United States
    • United States State Supreme Court of Iowa
    • 11 Febrero 1964
    ...and Town of Clive v. Colby, Iowa, 121 N.W.2d 115, 123 N.W.2d 331. In Iowa Power & Light Company v. Incorporated Town of Pleasant Hill, 253 Iowa 532, 112 N.W.2d 304, a severance case, we considered the reverse. In City of Des Moines v. Lampart, 248 Iowa 1032, 1038, 82 N.W.2d 720, we held......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT