Town of Clive v. Colby

• Decision Date: 17 September 1963
• Docket Number: No. 50764,50764
• Citation: 123 N.W.2d 331,255 Iowa 483
• Parties: TOWN OF CLIVE, Iowa, Appellee, v. Clark A. COLBY et al., Appellant, City of Windsor Heights, Iowa, Intervenor-Appellant.
• Court: Iowa Supreme Court

Page 331

123 N.W.2d 331

255 Iowa 483

TOWN OF CLIVE, Iowa, Appellee, v. Clark A. COLBY et al., Appellant, City of Windsor Heights, Iowa, Intervenor-Appellant.

No. 50764.

Supreme Court of Iowa.

Sept. 17, 1963.

Herrick, Langdon, Sandblom & Belin, Des Moines, for appellant.

Joseph M. Coppola and Volney Diltz, Des Moines, for appellee.

Emmert, Lindgren, Eller & Miller, and John J. Yeager, Des Moines, for intervenor-appellant.

STUART, Justice.

In their respective petitions for rehearing plaintiff, defendant and intervenor all agree the holdings in the original opinion should be extended to include a determination of the status of the 100% application for annexation to Windsor Heights. Although the parties were not particularly helpful in supplying authorities, we agree that it is for the best interest of all concerned that this question be resolved at this time. We therefore supplement the opinion filed April 9, 1963 by adding the following division.

III. On March 14, 1960, which the instant case was pending, 100% of the residents of the annexation territory filed an application for voluntary annexation of the territory to the City of Windsor Heights which was assented to by resolution of the Town Council of Windsor Heights as provided in section 362.30 Code of Iowa, I.C.A. Windsor Heights intervened in the present action claiming Clive had not met the statutory requirements because it was not capable of extending substantial services into the territory and that it had an interest in the subject matter by virtue of the voluntary annexation proceedings. In ruling upon points of law, the trial court dismissed the petition of intervention on the grounds that Clive acquired exclusive jurisdiction of the territory by the resolution of May 9, 1958 and had the right to pursue this action to its final determination.

This holding is based upon prior decisions of this court. We said in State ex rel. Mercer v. Town of Crestwood (1957), 248 Iowa 627, 632, 80 N.W.2d 489, 81 N.W.2d 452: 'All parties agree as to the legal principle that in a conflict between annexation and incorporation the proceeding first instituted has precedence. (Citations) * * * The great weight of authority in other states is that annexation proceedings and incorporation proceedings are legislative in character and the entity taking the first step has exclusive jurisdiction to complete its procedure. (Citations).' We reaffirm these statements. However, the instant case demands consideration of an additional factor not previously considered by this court.

In all prior Iowa cases the party who took first action apparently pursued its course to a successful conclusion. In the instant case we have held that Clive failed to make an affirmative showing of any capability to furnish substantial services or benefits. It therefore failed to meet the statutory requirements. It was permitted to pursue the regular procedure to conclusion without interference. The conclusion was adverse. This is the first case in which we have been called upon to decide whether compliance with the statute is essential to the exclusive jurisdiction referred to in the foregoing authorities.

Clive claims the jurisdiction is exclusive until the final decree and that all action taken between the first step and the final decree is void and of no effect. Windsor Heights claims that compliance with the statute is jurisdictional and a failure to comply with the statute renders the proceedings void ab initio, and therefore the 100% application is the first legal proceeding.

We can determine this matter as all interested parties are before us. Clive does not claim the proceedings for the 100% application for annexation to Windsor Heights are defective but depends solely upon exclusive jurisdiction being in Clive.

Section 362.26 Code of Iowa, I.C.A. sets forth the annexation procedure instituted by Clive. It provides the petition shall contain 'a statement of facts showing that the municipal corporation is capable of extending into such territory substantial municipal services and benefits * * *' and that if an affirmative showing is made of such capability the court shall decree annexation.

Therefore an affirmative showing is one of the statutory requirements and failure to make such showing is just as much a failure to comply with the statute as failure to properly publish notice or properly conduct the election. Surely it would not be claimed that these defects in the procedure would grant exclusive jurisdiction between the first step and the decision of the court. There would have been no jurisdiction from the beginning and the defective proceedings would have been no bar to subsequent action affecting this particular territory. We see no difference in the failure to make an affirmative showing of the required capabilities. Authorities examined on this proposition support our position.

In the case of Lorimor v. Town of Lorimor, 196 Iowa 774, 776, 195 N.W. 199, 200, we said the proceedings for severance of land from an incorporated town 'being wholly statutory, the requirements, in order to confer jurisdiction either of the subject matter or of the persons, must be complied with. Estrem v. Town of Slater, 181 Iowa 920, 165 N.W. 263.' (Emphasis supplied)

An affirmative showing of capability of extending...