Town of Grimes v. Adel Clay Products Co.
| Citation | 256 Iowa 145,126 N.W.2d 270 |
| Decision Date | 11 February 1964 |
| Docket Number | No. 51144,51144 |
| Parties | TOWN OF GRIMES, a municipal corporation of Polk County, Iowa, Appellant, v. ADEL CLAY PRODUCTS CO. et al., Appellees. |
| Court | Iowa Supreme Court |
Wisdom, Sullivan & Golden, Des Moines, for appellant.
Emmert, Lindgren, Eller & Miller and Gibson, Stewart & Garrett, Des Moines, for appellees.
Evan L. Hultman, Atty. Gen., for State of Iowa.
Harry Perkins, County Atty., and C. L. Becker, Asst. County Atty., for Polk County.
The question presented is purely one of fact. Is the evidence such that we can find as a fact that plaintiff has made an affirmative showing it is capable of extending into the territory to be annexed substantial municipal services and benefits not theretofore enjoyed by such territory, so that the proposed annexation will not result merely in increasing the revenue of plaintiff from taxation? In pertinent part, section 362.26, Code of Iowa, 1958, I.C.A., is:
Since section 362.26 was amended in its present form we have dealt with the factual problem presented in the following cases: City of Cedar Rapids v. Cox, 252 Iowa 948, 108 N.W.2d 253; Town of Coralville v. Great Lakes Pipe Line Company, 253 Iowa 23, 110 N.W.2d 375; 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 that subsection 6 of section 362.26 requires the court to determine only whether there was an 'affirmative showing', not how 'capable' plaintiff must be nor how substantial must be the municipal services and benefits furnished. We have followed this in each of the above cited cases. However, this does not exclude the preliminary questions of fact necessarily involved. Two preliminary questions are, is there a showing of substantial municipal services and benefits, and a showing of capability in the first instance under the circumstances shown in the record? This preliminary finding is the basis for proceeding. Without such finding the ultimate finding can not be reached. We are not getting into the legislative area of discretion in annexation from which we are constitutionally excluded. See all cases heretofore cited. We are demanding only the preliminary proof of the allegations required by subsection 5, paragraph b, of section 362.26, as follows:
'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.'
There must be a showing by a preponderance of the evidence of capability and substantial municipal benefits. In Town of Clive v. Colby at page 119 of 121 N.W.2d we said:
'It had no sewer system, no town water system and no fire department. It was budgeted to full capacity to take care of the streets and safety of the public then within the corporation limits. If the term 'substantial services or benefits' is to be given any of the interpretations placed upon it in the cases cited herein, plaintiff has failed to make an affirmative showing of any capability to furnish substantial services or benefits and we so hold.'
The above is a determination of the nonexistence of preliminary facts. Every finding of fact must be based on logic and human experience. The facts presented must persuade the trier of fact of the existence of the ultimate fact. The ultimate fact to be found is an affirmative showing of capability. 'Affirmative' as an adjective is defined in Webster's New International Dictionary, 2nd Ed., as follows: 'Capable' means having general ability or efficiency. 6 Words & Phrases, page 53. In the Clive case we said, at page 117 of 121 N.W.2d, 'The capabilities of the plaintiff to furnish municipal services must be determined on the conditions existing when the annexation proceedings were initiated.' Though the reference was to a somewhat different aspect, the statement is applicable here. We must determine the affirmative showing solely on the present circumstances as shown in the record, not on a showing based on what may or may not take place in the future. That is speculation.
The eviidence shows plaintiff has a population of 697 and an area of three-fourths of a section or 480 acres, at least 100 acres are undeveloped. The area to be annexed is 9 1/2 sections or approximately 6,080 acres. The south half of plaintiff is located in the east one-half of the northeast quarter of section 6-79-25 west of the 5th P. M. in Polk County and the northwest quarter of section 5-79-25. The area to be annexed is the remaining land in sections 5 and 6, sections 3, 4, 7, 8, 9 and 10, and the north one-half of sections 15, 16, 17 and 18 in the same township and range, except 100 feet around the periphery of the area except that part along U. S.-Iowa Interstate Highway No. 35. There are approximately 52 homes or other structures and approximately 200 persons living in the area to be annexed. There are two industries located in section 17, 2 1/2 miles by road from plaintiff, an industrial park across the road and a housing development located in the northeast part of the area. The rest of the area is agricultural land.
Plaintiff has a mayor-council form of government. It has a town clerk and town treasurer, under the direction of the mayor they handle the paper work. Plaintiff has a volunteer fire department. This department for its size and kind is good. It serves the present town and the surrounding area. Outside of town it is on a membership basis. It works in conjunction with other volunteer departments in the area. A part of the area to be annexed is served by another department. Its equipment and personnel compare favorably with similar volunteer departments.
The police department consists of a town marshall and five deputies. The marshall is paid. The deputies are not and there is no showing of the amount of their work. The marshall uses his own car. To patrol the area to be annexed would require expansion of manpower and equipment. The area now receives patrol protection from the sheriff's office. The regularity of patrols and the extent of the police protection are not fully shown.
The road maintenance and snow and ice removal work performed by plaintiff is adequate for its present needs. This service of necessity would have to be expanded which plaintiff proposes to do. According to the testimony of the mayor the roads in the area are now in good shape under the care of the county. In this regard plaintiff has deliberately excluded from annexation all roads around the area. This certainly has the appearance and undoubtedly the effect of increasing tax revenues for plaintiff while avoiding a burden. Plaintiff now has about five miles of...
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City of Clinton v. Owners of Property Situated Within Certain Described Boundaries, 54635
...attractive is an entirely different matter.' It is not necessary that all services be extended forthwith. Town of Grimes v. Adel Clay Products Co., 256 Iowa 145, 126 N.W.2d 270 (1964). Sewage treatment facilities in Clinton were modern, fully equipped and staffed, according to testimony of ......
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City of Monticello v. Adams
...Ahrens, supra, and City of Clinton v. Owners of Property, 191 N.W.2d 671 (Iowa). The case is not at all like Town of Grimes v. Adel Clay Products Co., 256 Iowa 145, 126 N.W.2d 270 (attempt by small town of limited ability to annex area 1200% Larger), or Town of Clive v. Colby, 255 Iowa 483,......
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Town of Grimes v. Board of Adjustment, Polk County, 2--57185
...be any. As this plaintiff certainly must recall, the court may deny, as well as allow, annexation. See Town of Grimes v. Adel Clay Products Co., 256 Iowa 145, 126 N.W.2d 270 (1964). When this special use case was tried in district court, the annexation petition was still pending, more than ......
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