Moore v. City Council of City of Perry

• Decision Date: 03 February 1903
• Parties: J. H. MOORE et al., Appellees, v. THE CITY COUNCIL OF THE CITY OF PERRY, ALLEN BREED, Mayor, P. H. O'CONNER et al., Councilmen, AND H. A. NASH, City Clerk, Appellants
• Court: Iowa Supreme Court

93 N.W. 510

119 Iowa 423

J. H. MOORE et al., Appellees, v. THE CITY COUNCIL OF THE CITY OF PERRY, ALLEN BREED, Mayor, P. H. O'CONNER et al., Councilmen, AND H. A. NASH, City Clerk, Appellants

Supreme Court of Iowa, Des Moines

February 3, 1903

Appeal from Dallas District Court.--HON. A. W. WILKINSON, Judge.

CERTIORARI proceedings to review the action of the city council of the city of Perry in extending the limits of said city. The trial court overruled a demurrer to the petition, and defendants appeal.

Affirmed.

Shortley & Harpel and W. H. Fahey for appellants.

Edmund Nichols for appellee.

OPINION

DEEMER, J.

The defects in the proceedings of the city council which are sought to be reviewed relate to the legality of the meeting at which the resolution for extension was passed, the neglect and failure of the mayor and city clerk to sign the resolution, and defects in the notice for the election to be held on the question of extension. The facts, as gathered from the petition, are that at a regular meeting of the council held on September 3, 1900, a resolution for the extension of the city limits was adopted. The council then adjourned until September 5th. On that date the following record was made: "Council met pursuant to adjournment of September 3, 1900. Present: Mayor Breed Councilmen Ginn and Heaton. No quorum being present, on motion of Heaton, and seconded by Ginn, council adjourned to meet September 8th, 1900, at 8 o'clock p. m. Carried. H A. Nash, Clerk. Approved October 2, 1900." On the 8th the council met, and adjourned until September 10th. On the 10th it again met. Present, four councilmen; the mayor and clerk being absent. O'Conner, one of the councilmen, was elected "chairman of the meeting," and one Carroll, having no connection with the city, was chosen "temporary clerk," and the records show the following proceedings: "Moved by Ginn, and seconded by Heaton, that the resolution passed September 3rd, 1900, extending the city limits, be rescinded. Ginn, Heaton, O'Conner, and Robinson voted aye. Carried. Moved by Heaton, and seconded by Robinson, that the resolution extending the city limits be passed, and that the mayor and city clerk give due notice of an election to be held on October 5th, 1900, between the hours of 7 o'clock a. m. and 7 o'clock p. m., at which time the qualified voters within the proposed limits shall have a right to vote. On such call Heaton, O'Conner, and Robinson voted aye, and Ginn voted no. Motion carried. Resolution recorded in Book of Ordinances and Resolutions."

We take it there is a clerical mistake here in the date at which the election was to be held; that it should be the 15th of October, instead of the 5th, as stated,--although neither party has seen fit to correct the error. The resolution passed at the September 3d meeting was signed by the mayor and clerk, but the one adopted at the meeting on the 10th was not signed by them. O'Conner and Carroll signed the second resolution as "acting mayor" and "acting city clerk." The proclamation and notice of election referred to a resolution passed at the meeting held September 3d, but fixed the time for the election as October 15th. A vote was had on the date so fixed, resulting in favor of the extension as proposed. The resolution passed September 10th was never submitted to the mayor for his signature, nor did he ever refuse to sign it. No notice of any of the meetings of the city council above referred to was given, and at the meeting of September 15th there was no quorum. These facts furnish the basis for the legal proposition involved. The regularity of the meeting held on September 10th is challenged for the reason that less than a quorum of the members at the meeting of September 5th had no power or authority to direct an adjournment until September the 8th. The contention is that, while less than a quorum of the members of a deliberative body may adjourn from day to day, they have no power to adjourn to a future day certain. A sufficient answer to this contention, conceding it to be sound, is that it affirmatively appears that the council held a meeting on the 8th, at which we must presume all the members were present, participating in the proceedings. This meeting could no doubt be adjourned, and the adjourned session should be treated as a continuation of the original meeting.

There is no provision in our law in any manner limiting the business which may be considered at a special meeting. Such a meeting may, under our Code, section 688, be called by the mayor or any three members of the council, and at such called meeting any legitimate business may be considered. If all the members attend such meeting, failure to give notice thereof is entirely immaterial. Hanna v. Wright, 116 Iowa 275, 89 N.W. 1108. Treating the adjournment on September 5th as irregular, the pleadings nevertheless show a meeting of the council on September 8th, which we must presume, in the absence of allegations to the contrary, was attended by all the members of the council. This meeting although special, could be adjourned to a fixed date by a quorum, and, when so adjourned, the adjourned meeting will be treated as a continuation of the one which was adjourned. Any business which might properly have been brought before the meeting on September 8th could properly be considered at the adjourned session on the 10th. This conclusion is supported by authority, and, in view of our statute, is clearly correct on principle. See State v. Smith, 22 Minn. 218; Carter v. McFarland, 75 Iowa 196, 39 N.W. 268; Supervisors v. Horton, 75 Iowa 271, 39 N.W. 394; Magneau v. City of Fremont, 30 Neb. 843, 47 N.W. 280; Lawrence v. Trainer, 136 Ill. 474, (27 N.E. 197); Beaver Creek v. Hastings, 52 Mich. 528 (18 N.W. 250).

Of course, if these parties had a right to be heard,--as, for instance, on a question of taxation,--a different rule might obtain under the doctrine announced in Gentle v. Board, 73 Mich. 40 (40 N.W. 928). The resolution in this case was simply one of the preparatory steps to an election, at which all who were interested were entitled to express themselves, and the citizens generally had no more right to be heard on the question of the adoption of this resolution than any other. The law does not contemplate either petitions or remonstrances before the city council, and no burdens are imposed on the taxpayer without an opportunity to be heard by casting his vote at the election called for the purpose of ultimately determining the question of extension of boundaries. There was no such irregularity in the proceedings of the meeting on September 10th as to invalidate the proceedings.

II. The resolution as finally adopted was not signed by the mayor. Code, section 685, provides that: "The mayor shall sign every ordinance or resolution passed by the council, before the same shall be in force, and, if he refuses to sign any such ordinance or resolution, he shall call a meeting of the council within fourteen days thereafter and return the same with his reasons therefor. If he fails to call the meeting within the time fixed above, or fails to return the ordinance or resolution, with his reasons as herein required, such ordinance or resolution shall become operative without such signature, and the clerk shall record it in the ordinance book with a minute of the fact making it operative. Upon such return of any such ordinance or resolution by the mayor to the council, it may pass the same over his objection upon a call of the yeas and nays, by not less than a two-thirds vote of the council, and the clerk shall certify on said ordinance or resolution that the same was passed by a two-thirds vote of the council, and sign officially as clerk." The only other relevant provisions are section 668, which provides that in the absence of the mayor or clerk the council shall appoint a temporary chairman and clerk from their own number; section 686, which provides that all ordinances shall be recorded in a book kept for that purpose and be authenticated by the signature of the presiding officer of the council and the clerk; and section 658, which says that in cities of the second class the mayor shall be the presiding officer of the council. Under prior...