190 Iowa 67 | Iowa | 1920
— The two cases above entitled grow out of a controversy which may be sufficiently explained as follows:
(1) That the judgment declaring the due incorporation
(2) That the fact that the election called by the city council was held on the day before the judgment affirming the incorporation was entered in the court proceeding, had the effect to withdraw the territory of Cedar Heights from the jurisdiction of the court, and that its order establishing the corporate character of the town was, therefore, void.
To this pleading or defense on the part of the interveners, - the plaintiffs in each case demurred. The demurrer in each instance was sustained, and, the interveners not electing to plead over or amend, decree and judgment were entered, as prayed. Both interveners appeal.
I. Of the questions raised by the demurrer and discussed by counsel, the one which forces itself to the front is that the defense which attempts to impeach the validity of the incorporation of Cedar Heights is one which is not available to the interveners in this case. Stated otherwise, it is objected by plaintiffs that the validity and regularity of the incorporation of the town are not open to attack in a collateral proceeding, but must be tested, if at all, by direct proceeding in quo warranto. That this is a correct statement of the rule, which will be adhered to where the objection is taken in due time, must be conceded. Nelson v. Consolidated Ind. School Dist. 181 Iowa 424; Harvey v. Kirton, 182 Iowa 973, 977; Crawford v. School Township, 182 Iowa 1324; 32 Cyc. 1415; Hammer v. Narverud, 142 Minn. 199 (171 N. W. 770).
That the point was made by the plaintiffs in the court below is not questioned, and, unless we must hold that this ease does not fall within the scope of the rule, it compels an affirmance upon both appeals here under consideration. Counsel for appellants, recognizing the force of this suggestion, say that the intervention by the District of Cedar Falls “is not a direct attack upon the so-called town of Cedar Heights, or upon those who claim to represent it in an official capacity, or upon the
“The questions presented by the petition of intervention are merely emergent or incidental, and hence it is proper to seek relief in a court of equity, the action in quo warranto not being the only remedy available to intervener.”
But if, as the quoted language seems to concede, the corporate organization and capacity of Cedar Heights are not open to “direct attack” by the interveners in this proceeding, it is difficult to understand by what principle of law, or upon what precedent, we can justify a holding that the same end may be reached and the same alleged fatal defect in the corporate organization be established indirectly in an action other than the one provided by our statute, Chapter 9, Title XXI, Code.
While there is a seeming confusion in our decisions as to the exclusive character of the remedy by quo warranto when the court is asked to hold void the organization of a municipal corporation, the discrepancy in the holdings is more apparent than real, and grows out of the fact that, in several instances, questions of this character have been tried in suits for injunction or other equitable relief, without any objection on either side that the action should have been in quo warranto; and it was not until the more recent decision in Nelson v. Consolidated Ind. School Dist., 181 Iowa 424, was handed down, that the proper practice was thoroughly discussed, and the exclusive character of the remedy by quo warranto definitely and clearly recognized. The one case which gives any apparent ground for appellant’s contention is School Twp. v. Wiggins, 122 Iowa 602. There is some discussion in the cited case quite in harmony with appellant’s argument; but, when we look into its history, it will be seen that it in no manner limits the effect of the holding in the Nelson case. The Wiggins case was before this court on three occasions. District Township v. Wiggins, 110 Iowa 702; School Township v. Wiggins, 122 Iowa 602; School Township v. Wiggins, 142 Iowa 377.
The effect of these decisions was considered by us in disposing of the Nelson case, and the language used by Mr. Justice Bishop in School Township v. Wiggins, 122 Iowa 602, was construed as being no more than an expression of opinion by its
But surely, the rule so stated, if it be a rule, can have no application here. The fact that proceedings were had in the district court in apparent conformity to the statute, and that judgment was entered therein, confirming the corporation and adjudging it to be duly perfected, is conceded. So far as appears, the proceedings were marked with no secrecy or fraud. Barring the alleged defect with reference to a single name upon the petition, no objection is made that the proceedings were in any manner irregular. Until that judgment is vacated, set aside, or reversed, or in some other appropriate manner held for naught, Cedar Heights has prima-facié authority to exercise all the functions and -powers of a duly organized town, and the school district of Cedar Heights is clothed with authority to demand and receive from the county treasurer the school taxes collected upon the property within its territory.
To avoid this, and to be in position to demand payment of the school moneys into its own treasury, the district of Cedar Falls must successfully attack the corporate organization of Cedar Heights. This is no mere “incidental or emergent issue.” It is the one central and paramount issue raised by the interveners. If there be any incidental or “emergent” issue presented, it is the diversion of the taxes’from the district of Cedar Heights to the district of Cedar Falls which will follow as an incident of an adjudication that the judgment incorporating Cedar Heights is void. But following our holding in the Nelson ease, and subsequent decisions to the same effect, such an adjudication is reserved by the statute for proceedings in quo warranto.
The authorities along the line in other states are very numerous and uniform. Quite in point are Hammer v. Narverud, 142 Minn. 199 (171 N. W. 770); School District v. Board of
This conclusion applies with equal force to the objection that the election on March 13, 1916, for the extension of the limits of Cedar Falls had the effect to nullify the" pending proceedings for incorporation of Cedar Heights and the judgment entered therein on the following day. This is only another form or ground of collateral attack upon the validity of the incorporation, and as such is not here available.
Appellees have raised certain objections to the validity of the extension of the city boundaries of Cedar Falls, because of alleged defects in the resolution of the council and in the notice of the election called for that purpose; but the conclusions we have already announced make it unnecessary for us to consider this phase of the case, and we pass the objections without decision.
There was no error in the rulings of the trial court in either case, and the judgments appealed from are both — Affirmed.