State ex rel. Mercer v. Incorporated Town of Crestwood, 49112

• Decision Date: 15 January 1957
• Docket Number: No. 49112,49112
• Citation: 248 Iowa 627,80 N.W.2d 489
• Parties: STATE of Iowa ex rel. D. P. MERCER, Appellee, v. The INCORPORATED TOWN OF CRESTWOOD, in Polk County, Iowa, George D. Jorgensen, Mayor, Henry Nyberg, Councilman, Cecil W. LeGrand, Councilman, Frederick W. Songer, Councilman, Perry C. Joint, Councilman, Mrs. June Morgan, Councilwoman, A. R. Toepfer, Treasurer, Appellants.
• Court: Iowa Supreme Court

Page 489

80 N.W.2d 489

248 Iowa 627

STATE of Iowa ex rel. D. P. MERCER, Appellee, v. The INCORPORATED TOWN OF CRESTWOOD, in Polk County, Iowa, George D. Jorgensen, Mayor, Henry Nyberg, Councilman, Cecil W. LeGrand, Councilman, Frederick W. Songer, Councilman, Perry C. Joint, Councilman, Mrs. June Morgan, Councilwoman, A. R. Toepfer, Treasurer, Appellants.

No. 49112.

Supreme Court of Iowa.

Jan. 15, 1957.

Rehearing Denied March 8, 1957.

See 81 N.W.2d 452.

Joseph M. Coppola, Anthony M. Critelli and James V. Sarcone, Des Moines, for appellants.

George A. Rice, George W. Rice, John Fletcher, Mapleton, and Warren C. Fletcher, Des Moines, for appellee.

PETERSON, Justice.

This is an action in quo warranto to test the legality of the incorporation of the Town of Crestwood. The question in the case is whether a tract of land adjoining the Town of Windsor Heights should be annexed to said town, or was incorporated as Crestwood. Annexation procedure appears in Sections 362.26 and 362.27, Iowa Code 1954, I.C.A. Incorporation procedure in Sections 362.1 to 362.9, inclusive.

The procedural sequence of action by Windsor Heights was: On September 19, 1955, the town council, under motion unanimously adopted, directed the town clerk to publish notice once a week for two weeks in the Des Moines Tribune giving notice to all persons interested of a meeting to be held at 7 o'clock P.M., on October 3, 1955, to consider a proposed resolution for annexation of abutting territory. The territory was described in detail in the notice. At the meeting of the town council on October 3 a resolution for annexation of the territory was unanimously adopted. The resolution provided, in accordance with Section 362.26, subd. 3, for an election to be held after publication of statutory notices. The election was held on November 8 and the annexation proposal carried. On November 11 the council ordered filing of legal proceedings for annexation as provided in Section 362.26, subd. 4. On January 16, 1956, Windsor Heights filed the petition in Polk County District Court. The action is pending awaiting the result of this action.

The Crestwood procedure was: On September 26, 1955, a petition signed by the statutory number of more than twenty-five residents of substantially the same territory as described in the Windsor Heights notices, was filed in Polk County District Court for incorporation of the Town of Crestwood. Commissioners were appointed by the court as provided in Section 362.5, and after proper notice an election as to incorporation was held on December 3, 1955, which carried. Afterwards an election was held to elect Mayor, Town Council and Treasurer. On January 6, 1956, in accordance with procedural steps duly taken, incorporation of Crestwood was ordered by Polk County District Court.

Plaintiff, D. P. Mercer, is the Mayor of Windsor Heights. He demanded of the Polk County Attorney that an action be commenced in Quo Warranto to test the legality of incorporation of Crestwood. The County Attorney refused to prosecute the action and application was made to the District Court for authority to commence this action. Authority was granted. On February 7, 1956, plaintiff filed the action. On May 29, 1956, decree and judgment was entered finding the incorporation of Crestwood illegal, null and void and ousting its officers. The town and its elected officers have appealed.

I. In the last ten years there has been a definite trend in Iowa toward building of homes in rural areas, immediately adjacent to cities and towns. Development companies have found the trend sufficiently attractive so that residential areas containing a large number of home sites have been developed as business projects. The result is we are now confronted in Iowa with numerous annexation projects, and in many cases a desire on the part of populous areas to establish new towns. Settlement of the legal questions involved in a case of this type is therefore important.

II. Procedure with reference to both annexation and incorporation, under present provisions of our statutes, is legislative. The question has heretofore arisen in Iowa, because in early statutory provisions legislative functions were allocated to the judicial department. This violates Section 1 of Article III of our constitution. I.C.A. After the usual provision as to powers of Government being divided into three departments, the Section states: '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.' See State ex rel. Klise v. Town of Riverdale, 244 Iowa 423, 57 N.W.2d 63; 16 C.J.S., Constitutional Law, § 139(2); In re Brenke, 105 Minn. 84, 117 N.W. 157; Udall v. Severn, 52 Ariz. 65, 79 P.2d 347; Glaspell v. City of Jamestown, 11 N.D. 86 88 N.W. 1023; In re Rulend, 120 Kan. 42, 242 P. 456; City of Galesburg v. Hawkinson, 75 Ill. 152; Searle v. Yensen, 118 Neb. 835, 226 N.W. 464, 69 A.L.R. 266.

The history of the situation in Iowa is of interest in this case. Since the Code of 1873 we have proceeded with annexations under the provisions of what became Sections 362.26, 362.27 and 362.28, 1946 Iowa Code, I.C.A. These sections were repealed by Section 7, Chapter 144, 54 G.A. Other provisions in the chapter, together with provisions in Chapter 162 of the 55 G.A. were substituted, and these now constitute Sections 362.26 and 362.27, 1954 Iowa Code, I.C.A.

State ex rel. Klise v. Town of Riverdale, was decided by this court in February, 1953. The procedure involved in the case was started in 1948 and was, therefore, governed by Sections 362.26 and 362.28, Iowa Code 1946, I.C.A. The town of Bettendorf took action in 1948 for annexation of certain territory abutting the town. The territory involved was afterwards incorporated as the town of Riverdale. Klise as relator instituted action against Town of Riverdale to dissolve its incorporation and hold the election of its officers null and void. Riverdale answered contending Sections 362.26 and 362.28, 1946 Code, I.C.A., were unconstitutional on the basis of judicial invasion of legislative functions. We sustained the position of Riverdale, stating [244 Iowa 423, 57 N.W.2d 66]: '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.' Annexation is the action of a city or town council and vote of the people. Incorporation is by petition signed by at least 25 residents of the area involved, and vote of the people.

In 69 A.L.R. 267, appears the following general statement: '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 municipal corporations is a legislative function * * * A majority of the cases would seem to favor the rule that a statute providing for the creation or change of a political district or municipal corporation, which grants to a court the exercise of any discretion as to whether the political subdivision should be created or changed, or requires of the court any other assistance than to determine whether the conditions precedent as declared in the statute have been complied with by the organizers of the district or corporation, or the district or corporation seeking a change, violates the constitutional limitation separating the powers of the government.'

III. There is no question raised by either party as to the regularity of the annexation or incorporation procedure. Subject only to objections as to legal significance of certain testimony, all evidence was offered by plaintiff, including evidence concerning incorporation of Crestwood.

All parties agree as to the legal principle that in a conflict between annexation and incorporation the proceeding first instituted has precedence. State ex rel. Harberts v. Klemme Community School District, Iowa 1955, 72 N.W.2d 512; Bohrofen v. Dallas Center Independent School Dist., 242 Iowa 1070, 49 N.W.2d 514; Independent District of Sheldon v. Board of Supervisors, 51 Iowa 658, 660, 2 N.W. 590, 591; Town of Greenfield v. City of Milwaukee (Town of Greenfield v. City of West Allis), 1951, 259 Wis. 77, 47 N.W.2d 292; State ex rel. Harrier v. Village of Spring Lake Park, Minn. 1955, 71 N.W.2d 812; In re Incorporation of Village of St. Francis, 208 Wis. 431, 434, 243 N.W. 315.

The point at which appellants and appellee differ is as to what constitutes the first step in procedure. Appellants contend it is the action of the District Court in each instance. Appellee contends the first step was passage of motion by Windsor Heights council instructing town clerk to publish notice of hearing on question of annexation. We have had no specific decision as to conflicting claims of annexation and incorporation, but we have decisions which are analogous to the proposition involved. They concern consolidation of, and annexation of territory to, school districts. Klemme Community School District, supra; Bohrofen v. Dallas Center Independent School Dist., supra; Independent District of Sheldon v. Board of Supervisors, supra; School Corporation of Township of Richland v. Independent School District, 162 Iowa 257, 144 N.W. 20; Smith v. Blairsburg Independent School District, 179 Iowa 500, 159 N.W. 1027.

Our recent pronouncement on the subject appears in State ex rel. Harberts v. Klemme Community School District, supra. This was a quo warranto proceeding to test the legality of the organization of the Klemme district. On October 3, 1953, a petition was filed seeking formation of the Belmond community school district, which included...