Iowa Power & Light Co. v. Incorporated Town of Pleasant Hill

• Decision Date: 12 December 1961
• Docket Number: No. 50383,50383
• Citation: 253 Iowa 532,112 N.W.2d 304
• Parties: IOWA POWER & LIGHT COMPANY, Appellee, v. INCORPORATED TOWN OF PLEASANT HILL, Iowa, Appellant.
• Court: Iowa Supreme Court

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.

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.

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.

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.

'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 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 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 matters. First, whether there is an affirmative showing that the town is capable of extending into such territory substantial municipal services and benefits not theretofore enjoyed so that the proposed annexation will not result merely in increasing the revenue from taxation of such municipal corporation, and second, the regularity of the proceedings. The court is not required to determine how capable the town must be nor how substantial must be the municipal services and benefits, only whether there is a substantial showing. Town of Coralville v. Great Lakes Pipe Line Company, Iowa, 110 N.W.2d 375; City of Cedar Rapids v. Cox, Iowa, 108 N.W.2d 253; 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.

Here, in a severance case, we must determine the opposite, whether there is an affirmative showing the town is incapable of extending into such territory substantial municipal services and benefits not theretofore enjoyed by such territory so severance will not result merely in plaintiff avoiding taxation and defendant retaining the territory merely to maintain tax revenue.

III. Defendant town was incorporated in May of 1956. Plaintiff through its representatives, took an active part in bringing about the incorporation. Defendant town is located immediately east of the city of Des Moines. Defendant's west boundary and Des Moines' east boundary are the same, S.E. 43rd Street. The north boundary is University Avenue. The east boundary is about Shadyview Boulevard, if extended, the south boundary is the Des Moines River. The territory to be severed is the most southerly part of the town. It consists of 135 acres. The north boundary of this area is Carlisle Road and the extension thereof east to the river. Carlisle Road extends from the west boundary east about one quarter of a mile and turns south and is then known as Highway 46. It extends south over the river. In the area west of Highway 46 is located plaintiff's Des Moines Power Station No. 2. This is a large electric generating plant, 220 persons are employed there. East of Highway 46 are located two substations and a power pool building. These facilities are for transmission purposes and are connected with plaintiff's Council Bluffs' plant and with various other companies. Power Station No. 2 produced 753,000,000 kilowatt hours in 1959. It serves Des Moines and surrounding communities. The assessed value of the land and improvements to be severed was $12,759,877 in 1959. North of Carlisle Road is located a tank farm of Great Lakes Pipe Line Company. East of the tank farm and adjoining the area to be severed on the north is an additional 220 acres of land owned by plaintiff. Severance is not asked for this 220 acre tract. This 220 acres is crossed by transmission lines and is subject to a pipeline easement. The surface is farmed and contains a set of farm buildings. This tract extends north to Vandalia Road and its east boundary is the river north to the confluence of the Four Mile Creek and the river. All of this land, the 220 acre tract, the tank farm, and the area to be severed is low land and subject to flooding. Plaintiff has built dikes around Power Station No. 2, the substations, and power pool building east of Highway 46. It...