Brooks v. Inc. Town of Brooklyn

• Decision Date: 17 February 1910
• Citation: 124 N.W. 868,146 Iowa 136
• Parties: BROOKS v. INCORPORATED TOWN OF BROOKLYN ET AL. (TWO CASES).
• Court: Iowa Supreme Court

146 Iowa 136

124 N.W. 868

BROOKS

v.INCORPORATED TOWN OF BROOKLYN ET AL. (TWO CASES).

Supreme Court of Iowa.

Feb. 17, 1910.

Appeal from District Court, Poweshiek County; Byron W. Preston, Judge.

Two actions brought by plaintiff, one to annul a contract entered into between defendant town and J. J. and Henrietta Watkins for the purchase of a lot whereon to erect a city building; to cancel the deed therefor; to compel a restitution of the funds paid for the lot; and to recover judgment therefor; and the other to annul and set aside certain contracts made by defendant town with defendants Coutts and Ormiston for the erection of an alleged city building; to enjoin the erection of the building; to have an election at which the contract for the building was approved by the electors adjudged illegal; and for other equitable relief. The trial court dismissed both petitions, and plaintiff appeals. The cases were tried together in the lower court and are submitted here as one. First case affirmed. Second reversed and remanded.John T. Scott and U. M. Reed, for appellant.

W. R. Lewis and John F. Talbott, for appellees.

DEEMER, C. J.

There is little dispute in the facts--the questions presented--aside from one to be hereafter noted, being of law. The town of Brooklyn is duly incorporated and has a population of about 1,200. Like most Iowa towns it is a farming community, and aside from its social and mercantile affairs its interests are largely agricultural. Prior to the transactions to which we are about to refer, it had no city hall, no fire station, no theater, no opera house, and no large public assembly hall. Some of its public-spirited citizens conceived the notion that all these things might be joined in one building, and that a lot could be purchased and such a structure erected through a tax levy upon all the property within the town. This proposition was submitted to the town council, and the plan met with the approval of the members thereof. Steps were almost immediately taken to accomplish the wishes of the authors of the plan, and on July 3, 1908, the town council submitted to the electors at a special election the following proposition: “Shall the town of Brooklyn, Iowa, build a new town hall and assembly hall, at an expense of not to exceed $8,000.00 in addition to what may be realized from the old building?” By a vote of about two to one, this proposition was carried. Almost immediately thereafter the council began negotiations for a lot and also authorized the employment of an architect to design plans for the building. Before anything was done, however, and on September 4, 1908, the city, in levying the improvement taxes, levied a three-mill tax for a town hall sinking fund, which, as we understand, was duly certified to the proper authorities. On October 6th the council made a conditional contract with the defendants, Watkins, for the purchase of the lot in question, the contract to be void if both it and the proposition to erect a town building were not approved by the electors. However, on December 4th, the contract was resigned and reaffirmed without conditions, and the council directed the immediate consummation of the contract and the payment of the consideration out of the general funds of the town. Without a vote of the electors, save as heretofore indicated, the purchase price, to wit, $1,160, was paid out of the general funds and deed made to the city. On the 4th of December the city adopted the plans for the new building, and contracts were immediately entered into with defendants Coutts & Ormiston for the erection of a building according to these plans. At a special election held on January 11, 1909, the contracts so entered into were submitted to the electors; the proposition being as follows:

“Notice to Voters: For an affirmative vote on any question submitted on the ballot make a cross (X) mark in the square after the word ‘Yes.’ For a negative vote make a similar mark in the square following the word ‘No.’

Shall the following public measure be adopted, to wit:

+-----+
                ¦Yes ¦¦
                +----+¦
                ¦No  ¦¦
                +-----+
                

Shall the contracts approved by the town council in relation to the erection of a town hall be adopted, as follows: [Here is set out the contract with R. G. Coutts, and immediately thereunder the contract with I. J. Ormiston.]”

The contract with Coutts was for the erection of the building, and with Ormiston for the plumbing, heating, and lighting of the structure. But one proposition was submitted--that is to say, the electors had to approve of both or neither. The vote of the electors was in the affirmative. This action to set aside the various deeds, contracts, etc., was commenced originally on December 24, 1908, and on February 15, 1909, plaintiff filed an amendment to the petition challenging the validity of the January election. The nature of the attack upon the proceedings is so well stated in appellant's brief that we here quote from it as follows: “The plaintiff, appellant herein, by these actions, seeks to have the purchase of said lot set aside, on the ground that the same is illegal and void, because the proposition therefor was not submitted to the voters for their approval; and he asks that the defendant be restrained from erecting the proposed building,because it is not such a building as the town has the power to erect, it not being designated or planned for municipal use; and he further asks that said election be set aside and held invalid, for the reason that the same was held to vote upon illegal propositions, and further, that the voters were not given an opportunity to vote for or against each of the contracts submitted, but were compelled to vote either for the adoption or against the adoption of both.” As to the building itself, we quote the following from appellant's brief: “The building as thus planned and approved is 90 feet in length and 40 feet in width. It has a floor space, excluding boiler rooms, of almost 6,000 square feet. Of this space, but 1,200 square feet is to be used by the city government for offices, fire department, etc., leaving quite 4,000 square feet of floor space for use for other purposes. The plans, as a whole, show that the building is designed for an opera house, it being provided with an auditorium capable of seating 400 or 500 people, a box office, ticket window, stage, balcony, dressing rooms, etc. The dressing rooms are marked ‘store rooms' on the plans, and have a floor space of about 1,000 square feet, and are additional to the so-called fire department and apparatus rooms. The plans show that these ‘store rooms' are to be ‘finished’--quite an unnecessary expense if they are to be used solely for storage purposes.” Blue prints, showing basement, first and second story plans, cross-sections, elevations, roof plans, etc., are in evidence and have been certified as a part of the record. It is well settled, of course, that a municipal corporation has such powers and such only as are, first, expressly granted, or second, such as are fairly or necessarily implied from those granted, or third, such as are essential to the declared objects and purposes of the incorporation. As to the third, it is not enough that they be convenient; it must appear that they are indispensable. In case of doubt the existence of the power is denied by the courts. Clark v. Des Moines, 19 Iowa, 199, 87 Am. Dec. 423;Logan v. Pyne, 43 Iowa, 524, 22 Am. Rep. 261;Becker v. Water Works, 79 Iowa, 419, 44 N. W. 694, 18 Am. St. Rep. 377;Brockman v. Creston, 79 Iowa, 587, 44 N. W. 822;Heins v. Lincoln, 102 Iowa, 69, 71 N. W. 189;Cherokee v. Perkins, 118 Iowa, 405, 92 N. W. 68. If there be no authority to make a contract under these rules, any attempt to do so is void. McPherson v. Foster, 43 Iowa, 48, 22 Am. Rep. 215;Cedar Rapids Water Co. v. Cedar Rapids, 118 Iowa, 234, 91 N. W. 1081;Weitz v. Ind. Dist., 79 Iowa, 423, 44 N. W. 696. Again, if the project is merely colorable under the pretense of some actual authority, but intended to promote some private or unauthorized purpose, courts will declare it illegal. Strahan v. Malvern, 77 Iowa, 454, 42 N. W. 369;In re Atty. Gen. v. Eau Claire, 37 Wis. 400;In re City v. McNab, 67 Ala. 588, 42 Am. Rep. 118;Coates v. Campbell, 37 Minn. 498, 35 N. W. 366;Allen v. Jay, 60 Me. 124, 11 Am. Rep. 185;Mather v. City of Ottawa, 114 Ill. 659, 3 N. E. 216;Nerlien v. Brooten, 94 Minn. 361, 102 N. W. 867;Sugar v. Monroe, 108 La. 677, 32 South. 961, 59 L. R. A. 723;Dorton v. Hearn, 67 Mo. 301.

The rule with reference to public buildings has thus been stated: “The validity of appropriations for the purpose of erecting or repairing public buildings is sometimes contested in the courts on the ground that the contemplated accommodations exceed the actual needs of the corporation, and are to be rented in part to private individuals. The distinction drawn in the authorities is this: If the primary object of a public expenditure is to subserve a public municipal purpose, the expenditure is legal notwithstanding it also involves as an incident an expense which, standing alone, would not be lawful. But if the primary object is to promote some private end, the expenditure is illegal even though it may incidentally serve some public purpose. It is proper in constructing buildings to make suitable provision for prospective wants. Proceedings in raising and expending money within the limits of the corporate powers in these particulars will not be collaterally impeached and held void because in the opinion of a court and jury a less sum would have answered the immediate necessities of the corporation or the money might have been more judiciously and economically expended.” Beach on Public Corporations, vol. 1, § 646.

In Worden v. New Bedford, 131 Mass. 24, 41 Am. Rep. 185, it is said: “The city could not erect buildings for business or speculative purposes, but having a city hall, built in good faith and used for municipal purposes, it has...