State ex rel. Klise v. Town of Riverdale, 48091

• Decision Date: 10 February 1953
• Docket Number: No. 48091,48091
• Parties: STATE ex rel. KLISE v. TOWN OF RIVERDALE et al.
• Court: Iowa Supreme Court

Page 63

57 N.W.2d 63

244 Iowa 423

STATE ex rel. KLISE v. TOWN OF RIVERDALE et al.

No. 48091.

Supreme Court of Iowa.

Feb. 10, 1953.

Lane & Waterman, of Davenport, for appellants.

Carl H. Lambach and Margaret Stevenson, of Davenport, and Albert J. Stafne, Jr., of Bettendorf, for appellee.

MULRONEY, Justice.

On September 29, 1948 the City of Bettendorf adopted a resolution for the annexation of certain territory pursuant to Sections 362.26, 362.27 and 362.28 of the 1946 Code of Iowa, I.C.A., Section 362.26 provides as follows:

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

'1. The council of the city or town desiring to annex adjoining territory may so provide by resolution, therein describing the territory proposed to be annexed and directing the mayor to institute therefor a suit in equity against the owners of such property.

'2. The petition shall contain:

'a. A description of the entire property proposed to be annexed and of that portion thereof owned by each defendant.

'b. The facts constituting the desirability of such annexation.

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

'3. If the court finds in favor of the annexation of such territory or any part thereof, it shall enter a decree accordingly, and if not, the petition shall be dismissed. No costs shall be taxed against any defendant who fails to make defense.'

Section 362.27 provides for notice by publication and posting of the filing of the petition. Section 362.28 provides for the annexation of unplatted territory, and the proceedings thereunder are identical with those under 362.26 by direct reference, with the exception that before the petition of annexation can be filed the council must submit the proposition to annex to the voters and secure a majority vote favoring the annexation. This section also provides that proceedings to annex platted and unplatted territory may be taken care of in one action.

The election which was held November 2, 1948 was favorable to annexation and shortly thereafter the city employed an abstract company to prepare the necessary descriptions and a list of owners of the separately owned parcels in the area to be annexed. While this work was going on and in February, 1949, litigation developed between a taxpayer and the city challenging the validity of the election. This litigation resulted in a decree on April 29, 1949 in favor of the city which on appeal to this court was affirmed by opinion filed February 7, 1950. Iowa Illinois Gas & Elec. Co. v. City of Bettendorf, 241 Iowa 358, 41 N.W.2d 1.

While the appeal in the above case was pending the city on August 24, 1949 filed its petition for annexation and commenced publication of notices. In October, 1949 certain landowners in the territory sought to be annexed appeared specially and moved to quash service of the original notice. Hearing was had on this motion on July 21, 1950 and on August 22, 1950 the court quashed the service of notice. There is an explanation for the delay in the hearing on the motion to quash service but, as will presently appear, the delay is immaterial for the purpose of our opinion.

On October 4, 1950, before republication of notice in the annexation case a petition was filed in the Scott County District Court by twenty-five electors in the territory described in the petition asking for the incorporation of said territory as the Town of Riverdale. The territory described in this petition embraced a portion of the area Bettendorf was seeking to annex and some other land. The incorporation proceedings culminated in a decree on December 27, 1950 declaring the Town of Riverdale duly incorporated. It is admitted the incorporation proceedings were in compliance with applicable statutes governing incorporation of towns.

On February 26, 1951, the mayor of Bettendorf, after proper authorization, commenced the present action in quo warranto against the Town of Riverdale, its governing body, and officers, alleging the incorporation of Riverdale was invalid and void because the city of Bettendorf had the prior right to proceed to the conclusion of its annexation proceedings.

The defendants answered denying the existence of Bettendorf's prior right alleging Section 362.26, upon which such prior right is predicated is unconstitutional under the provisions of Sec. 1, Article III of the Iowa Constitution, I.C.A. The answer also alleged if the said statute were constitutional the prior right to annex would not come into existence until the suit in equity for annexation was instituted and no valid suit for annexation had been instituted at the time of Riverdale's proceedings to incorporate, also if the prior right of Bettendorf to annex had ever existed the same was lost through unjustified delay on the part of the city of Bettendorf in furthering its annexation proceedings.

Trial was had upon the issues joined and the trial court found and concluded Section 362.26 was not unconstitutional, the city of Bettendorf had the prior right to annex from the date of the adoption of the annexation resolution, and this prior right was not lost by any delay in the annexation proceedings. Upon these findings and conclusions judgment and decree was entered holding the incorporation of the Town of Riverdale null and void and ousting the individual defendants from their purported offices. The defendants appeal presenting the same three issues raised in their answer.

I. Since all of the rights of the city of Bettendorf are based upon Section 362.26 of the 1946 Code of Iowa, I.C.A., previously quoted, it becomes necessary to consider first the constitutionality of that section. Article III of the Iowa Constitution providing for the distribution of powers states:

'Departments of government. Section 1. The powers of the government of Iowa shall be divided into three separate departments--the Legislative, the Executive, and the Judicial: and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any function appertaining to either of the others, except in cases hereinafter expressly directed or permitted.'

The incorporation of a municipality is purely a legislative function. The power to create municipalities cannot be delegated to the judicial branch of government. The power to extend the boundaries of a municipality is an exercise of the power to create a municipality and is within the exclusive power of the legislative branch of government.

A few quotations will serve to show the above principles are firmly established. Wiseman v. Calvert, W.Va., 59 S.E.2d 445, 452, holds: '* * * the incorporation of a municipality is purely a legislative function.'

Wertz v. City of Ottumwa, 201 Iowa 947, 208 N.W. 511, 513, holds: '* * * the power to create municipalities rests wholly with the Legislature. * * * The Legislature had power to provide by law how municipalities shall be incorporated, and also how their boundaries may be extended.'

In Denny v. Des Moines County, 143 Iowa 466, 477, 121 N.W. 1066, 1070, we quoted with approval this language from an early Michigan case, Houseman v. Kent Circuit Judge, 58 Mich. 364 (25 N.W. 369):

"The design of the Constitution is that each of the three branches of the government shall be kept, so far as practicable, separate, and that one of the departments shall not exercise the powers confided by that instrument to either of the others. Any legislation, therefore, authorizing an invasion of this design, and conferring upon the judiciary the exercise of powers belonging to either of the others, cannot be regarded as valid."

The general rule which the note writer in 69 A.L.R. 266 at 267 draws from the authorities is this: 'It may be stated as a general rule, supported by practically all of the cases in which the proposition is considered, that the creation, enlargement, or diminution of political districts or municipalities is a legislative function * * *'

Appellees state in their brief that they 'do not dispute that the power to establish a municipality and to alter municipal boundaries is a political function which rests solely in the legislative branch of the Government.' The question then is whether this annexation statute delegates a legislative function to the court. If it does it is unconstitutional under the constitutional provision quoted above.

II. The prohibition against the delegation to the courts of power of creation, enlargement and diminution of municipalities, does not mean that the legislature cannot provide for some court function in the proceedings. Perhaps it would be helpful to describe some methods of annexation and give the areas of agreement and controversy.

Apparently in most states there is a constitutional provision similar to our Sec. 30, Article III forbidding the incorporation of cities and towns (and this includes boundary changes) by local or special laws. There must be a general statute applicable to all who meet the conditions of the statute. Of course the first method of annexation would be to permit all municipalities to annex by ordinance. This method would probably be constitutional since a city council is a legislative body to which legislative functions can be delegated.

III. The next method of annexation was no doubt prompted by the fear of leaving such power of enlargement in the governing bodies of municipalities. Many of the legislatures by general statutes prescribed the conditions which must be met in order for the annexation to take place and required the courts to ascertain whether these conditions have been met and if they have to decree annexation. These statutes have all been held constitutional for the legislative function has not been delegated to the courts. The courts are merely required to perform the judicial function of determining whether the law has been complied with.

The rule announced in 16 C.J.S., ...