Wertz v. City of Ottumwa, No. 37038.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtFAVILLE
Citation208 N.W. 511,201 Iowa 947
PartiesWERTZ ET AL. v. CITY OF OTTUMWA ET AL.
Docket NumberNo. 37038.
Decision Date06 April 1926

201 Iowa 947
208 N.W. 511

WERTZ ET AL.
v.
CITY OF OTTUMWA ET AL.

No. 37038.

Supreme Court of Iowa.

April 6, 1926.


Appeal from District Court, Wapello County; D. M. Anderson, Judge.

Action in equity for an injunction to restrain the city council of the city of Ottumwa from adopting certain resolutions whereby the city council proposed to annex certain tracts of land to the said city. The court granted the relief prayed for as to certain tracts and denied it as to others, and the plaintiffs appeal. Affirmed.

[208 N.W. 512]

Daniel F. Steck, of Ottumwa, for appellants.

George L. Gillies, of Ottumwa, for appellees.


FAVILLE, J.

Appellants are the owners of real estate lying within the several tracts of land involved in this case. The city council of appellee city, without any notice, was about to adopt certain resolutions annexing certain tracts of land, including the real estate of appellants, to the city of Ottumwa, when this action for injunction was instituted. The said city was proceeding to act under the provisions of Code, § 5614, which is as follows:

“In case any territory adjoining any city or town has been platted into tracts of less than ten acres and has been substantially built up and the inhabitants thereof are enabled to secure the benefits of the city or town government in the way of police and fire protection, or may be furnished with light and water by said city or town or under a franchise granted thereby, the council of the city or town may by resolution incorporate such territory into the city or town.”

It is the contention of appellants that this section of the statute is unconstitutional. Two grounds are urged: First, that it permits the taking of private property for public use without just compensation first being

[208 N.W. 513]

made or secured to be made, in violation of section 18, art. 1, of the Constitution; and, second, that the statute and the proposed action of the city council are unconstitutional, in that thereby it is attempted to deprive a person of his property without due process of law, in contravention of section 9 of the Constitution.

[1][2][3] I. Section 18 of article 1 of the Constitution is as follows:

“Private property shall not be taken for public use without just compensation first being made, or secured to be made to the owner thereof, as soon as the damages shall be assessed by a jury, who shall not take into consideration any advantages that may result to said owner on account of the improvement for which it is taken.”

It is quite apparent, without elaborate discussion, that the section of the statute in question is not in contravention of the above-quoted section of the Constitution. The latter is clearly limited to a taking for public or quasi public purposes under the power of eminent domain. The enlargement of the boundaries of a municipality is not a “taking” of private property for public use within the contemplation of this section of the Constitution. Morford v. Unger, 8 Iowa, 82;Hubbell v. City of Des Moines, 154 N. W. 337, 173 Iowa, 55;Hurt v. City of Atlanta, 28 S. E. 65, 100 Ga. 274;Williams v. Nashville, 15 S. W. 364, 89 Tenn. 487;Howell v. City of Buffalo, 37 N. Y. 267, 270;Wade v. City of Richmond, 18 Grat. (Va.) 583;City of Aurora v. West, 9 Ind. 74;Norris v. City of Waco, 57 Tex. 635. See, also, Emery v. San Francisco Gas Co., 28 Cal. 345, 351.

[4] II. Appellants also insist that the action of the city council is in violation of the provisions of the Constitution that “no person shall be deprived of life, liberty or property without due process of law.” The precise contention at this point is that the provisions of the statute permitting the city council to annex territory adjoining said city under certain conditions, by a resolution of the city council, without notice of any kind or character to the property owners within said proposed territory, is depriving said property owners of their property without due process of law.

The case at this point naturally resolves into two propositions: (1) Does due process of law require a notice to the landowners and a hearing upon the question of the advisability and desirability of extending the boundaries of the city; and (2) does the including of appellants' property within the municipality deprive appellants of their property, by taxation for municipal purposes, without due process of law.

It may be conceded that “due process of law” is not confined to judicial proceedings, but extends to every case which may deprive a citizen of life, liberty, or property whether the proceeding be judicial, administrative, or executive in its nature. Gatch v. City of Des Moines, 18 N. W. 310, 63 Iowa, 718;Weimer v. Bunbury, 30 Mich. 201;Stuart v. Palmer, 74 N. Y. 183, 30 Am. Rep. 289.

The section of the statute involved is in the chapter on cities and towns. The two preceding sections, 5612 and 5613, provide for the annexation of platted and unplatted territory to a city or town by certain proceedings in court. The section in question, 5614, is an innovation in the statutes of the state and first appeared in the Code of 1924.

Generally speaking, and unless hampered by constitutional limitations, the power to create municipalities rests wholly with the Legislature. 28 Cyc. 135. Our cities under special charter were created by special act of the General Assembly prior to the adoption of the present Constitution. Under it, article 3, § 30, the Legislature is prohibited from passing local or special laws of the incorporation of cities and towns. A general law has...

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12 practice notes
  • City of Muscatine v. Waters, No. 2-57636
    • United States
    • United States State Supreme Court of Iowa
    • March 16, 1977
    ...annexation of territory to a municipality does not deprive owners of their property without due process of law. Wertz v. City of Ottumwa, 201 Iowa 947, 950-954, 208 N.W. 511. We said (at page 952 of 201 Iowa, at page 514 of 208 N.W.) the case was somewhat analogous to those where boundaries......
  • State ex rel. Jordan v. City of Overland Park, No. 47377
    • United States
    • United States State Supreme Court of Kansas
    • November 11, 1974
    ...of the courts to control if the provisions of the statute are followed. . . .' (p. 489, 125 S.W. p. 1091) In Wertz v. City of Ottumwa, 201 Iowa 947, 208 N.W. 511, the plaintiff landowner Page 1346 challenged an annexation statute on constitutional grounds. The Iowa court rejected the challe......
  • State ex rel. Klise v. Town of Riverdale, No. 48091
    • United States
    • United States State Supreme Court of Iowa
    • February 10, 1953
    ...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 p......
  • City of Cedar Rapids v. Cox, No. 49413
    • United States
    • United States State Supreme Court of Iowa
    • November 18, 1958
    ...annexation of territory to a municipality does not deprive owners of their property without due process of law. Wertz v. City of Ottumwa, 201 Iowa 947, 950-954, 208 N.W. 511. We said (at page 952 of 201 Iowa, at page 514 of 208 N.W.) the case was somewhat analogous to those where boundaries......
  • Request a trial to view additional results
12 cases
  • City of Muscatine v. Waters, No. 2-57636
    • United States
    • United States State Supreme Court of Iowa
    • March 16, 1977
    ...annexation of territory to a municipality does not deprive owners of their property without due process of law. Wertz v. City of Ottumwa, 201 Iowa 947, 950-954, 208 N.W. 511. We said (at page 952 of 201 Iowa, at page 514 of 208 N.W.) the case was somewhat analogous to those where boundaries......
  • State ex rel. Jordan v. City of Overland Park, No. 47377
    • United States
    • United States State Supreme Court of Kansas
    • November 11, 1974
    ...of the courts to control if the provisions of the statute are followed. . . .' (p. 489, 125 S.W. p. 1091) In Wertz v. City of Ottumwa, 201 Iowa 947, 208 N.W. 511, the plaintiff landowner Page 1346 challenged an annexation statute on constitutional grounds. The Iowa court rejected the challe......
  • State ex rel. Klise v. Town of Riverdale, No. 48091
    • United States
    • United States State Supreme Court of Iowa
    • February 10, 1953
    ...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 p......
  • City of Cedar Rapids v. Cox, No. 49413
    • United States
    • United States State Supreme Court of Iowa
    • November 18, 1958
    ...annexation of territory to a municipality does not deprive owners of their property without due process of law. Wertz v. City of Ottumwa, 201 Iowa 947, 950-954, 208 N.W. 511. We said (at page 952 of 201 Iowa, at page 514 of 208 N.W.) the case was somewhat analogous to those where boundaries......
  • Request a trial to view additional results

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