Bechtel v. City of Des Moines

Decision Date22 January 1975
Docket NumberNo. 2--57096,2--57096
Citation225 N.W.2d 326
PartiesReuben C. BECHTEL et al., Appellees, v. CITY OF DES MOINES, Iowa, its City Councilmen Richard Olson et al., Appellants.
CourtIowa Supreme Court

Philip T. Riley and M. A. Iverson, Des Moines, for appellants City of Des Moines and its councilmen.

Meardon, Sueppel, Downer & Hayes, Iowa City, for appellant League of Iowa Municipalities.

Richard C. Turner, Atty. Gen., Asher E. Schroeder, Special Asst. Atty. Gen., and Robert W. Goodwin, Asst. Atty. Gen., for appellant Iowa State Highway Commission.

Max Putnam, Des Moines, for appellees.

En banc.


In this appeal we construe the Twenty-fifth Amendment to the Iowa Constitution, which grants home rule to cities. We use the term 'cities' to include towns. See 64 G.A. ch. 1088, § 2(1).

The Tenth Amendment to the United States Constitution states, 'The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.'

Section 1 of article III of the Iowa Constitution, relating to the Legislative Department, states, 'The Legislative authority of this State shall be vested in a General Assembly, which shall consist of a Senate and House of Representatives; and the style of every law shall be, 'Be it enacted by the General Assembly of the State of Iowa."

Under this constitutional framework, Chief Justice Dillon stated in 1868 regarding the relative positions of the Iowa General Assembly and cities:

The true view is this: Municipal corporations owe their origin to, and derive their powers and rights wholly from, the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so it may destroy. If it may destroy, it may abridge and control. City of Clinton v. Cedar Rapids & M.R.R., 24 Iowa 455, 475.

The same year he further stated:

(A) municipal corporation possesses and can exercise the following powers and no others: First, those granted in express words; second, those necessarily implied or necessarily incident to the powers expressly granted; third, those absolutely essential to the declared objects and purposes of the corporation--not simply convenient, but indispensible; fourth, any fair doubt as to the existence of a power is resolved by the courts against the corporation--against the existence of the power. Merriam v. Moody's Executors, 25 Iowa 163, 170.

The Dillon rule became embedded in Iowa law. E.g., McSurely v. McGrew, 140 Iowa 163, 118 N.W. 415; Pape v. Westerdale, 254 Iowa 1356, 121 N.W.2d 159.

In Iowa as elsewhere, dissatisfaction arose with the full sweep of the Dillon principle, especially as cities became larger and took on more functions. On the one extreme were those who opposed city autonomy almost altogether; on the other were those who favored complete power by cities--unlimited home rule. Scheidler, Implementation of Constitutional Home Rule in Iowa, 22 Drake L.Rev. 294, 296--297. Over a period of years, Iowa legislators who favored home rule attempted to obtain repeal or modification of the Dillon rule, and in 1963 they secured an enactment by the Sixtieth General Assembly. See § 368.2, Code 1973. This act appeared to grant home rule in broad terms but actually was 'a statute calling for a more liberal construction of other statutes granting power pertaining to local and internal affairs.' Richardson v. City of Jefferson, 257 Iowa 709, 716, 134 N.W.2d 528, 533.

Home-rule proponents continued their efforts in the General Assembly. Eventually they mustered sufficient strength to obtain legislative approval of a proposed constitutional amendment containing an accommodation between the powers of the General Assembly and cities. Both houses passed such a joint resolution at two separate sessions. 61 G.A. ch. 477, § 1; 62 G.A. ch. 462, § 1. On November 7, 1968, the voters approved the proposal as the Twenty-fifth Amendment to the Iowa Constitution, commonly called the home-rule amendment. The amendment states:

Municipal corporations are granted home rule power and authority, not inconsistent with the laws of the general assembly, to determine their local affairs and government, except that they shall not have power to levy any tax unless expressly authorized by the general assembly.

The rule or proposition of law that a municipal corporation possesses and can exercise only those powers granted in express words is not a part of the law of this state.

In 1969, the next General Assembly established an interim committee, composed of legislators and others, to 'review state statutes as they apply to city and town government' and to 'recommend appropriate revisions which will implement home rule and facilitate the solution of local problems by local initiative.' 63 G.A. ch. 333, § 3. During the following biennium, the committee laboriously studied the Iowa statutes on cities and in 1971 presented a report containing proposed legislation to the first session of the Sixty-fourth General Assembly.

The General Assembly enacted the proposed legislation with amendments, and the governor approved it. This was the home-rule act. 64 G.A. ch. 1088.

The home-rule act is a comprehensive statute consisting of 352 sections. Sections 1 through 198 (except § 9) constitute a new City Code of Iowa comprised of definitions, rules of construction, substantive provisions, and certain limitations on home rule desired by the General Assembly. Section 9 pertains to the effective dates of sections. Section 199 abolishes a number of then-existing chapters of the title of the Iowa Code on cities. Sections 200 through 352 amend a number of sections of the Iowa Code outside the title on cities.

Section 9, recently amended, contains rather complicated provisions. See 65 G.A. ch. 1212. Under that section as amended, §§ 199 through 352 take effect on July 1, 1975. Sections 1 through 198 take effect on July 1, 1972, with the qualification that until July 1, 1975, a city is subject only to such parts of §§ 1 through 198 as it elects to come under by resolution of its council. Upon such an election, conflicting laws on the particular topic do not apply to the city. (Presumably this qualification in § 9 does not apply to § 9 itself.)

Under the qualification in § 9, the Des Moines city council elected to come under § 83 of the home-rule act, which extends the time for certifying property taxes. After Des Moines thus came under § 83, plaintiffs, who are all voters, property owners, and taxpayers in that City, commenced the instant declaratory judgment action. For this appeal, we separate the defendants in the action in the following way. We place together the City of Des Moines, its councilmen, and the League of Iowa Municipalities. These defendants have made common cause here and have joined in a single brief. We will speak of them collectively as the City. The other defendant is the Iowa State Highway Commission. We will call this defendant the Commission.

Regarding the place of the Commission in this action, an employee of the Commission serves on the technical staff of the Central Iowa Regional Planning Commission, which is an independent body. See Code 1973, chs. 307, 473A. The Planning Commission desired to propose a transportation plan for the Des Moines urban area, and in that connection had its technical staff study the feasibility of a north-south freeway in the area. The Highway Planning Surveys Department of the Iowa State Highway Commission made a traffic study for use by the Highway Commission in considering proposals by the Planning Commission in the event the Planning Commission recommended a north-south freeway to the Highway Commission.

The Planning Commission developed a proposed transportation plan to handle projected 1990 travel demands, including a recommendation for a north-south freeway in the Des Moines urban area. The Des Moines city council approved the plan but deleted the freeway proposal. Neither the Planning Commission nor the City of Des Moines has proposed a north-south freeway to the Highway Commission. The Highway Commission has not taken a position on that subject and does not have such a freeway in its five-year plan or other plans. In any event, such a project would necessitate extensive federal assistance, and the City of Des Moines does not qualify for such help, not having a continuing comprehensive transportation plan. See 23 U.S.C. § 134.

The trial court tried the action on the merits and held for plaintiffs by declaratory judgment and nunc pro tunc order. Defendants appealed.

As we view the appeal, three issues control the decision. First, does a justiciable controversy exist between plaintiffs and the City and between plaintiffs and the Commission? Second, does the home-rule amendment prohibit the General Assembly from repealing and amending statutes on cities which were in effect when the amendment was adopted and from thereafter enacting new statutes pertaining to or limiting the powers of cities? Third, are certain sections of the home-rule act invalid under specified sections of the Iowa Constitution other than the home-rule amendment?

I. A Justiciable Controversy? Our rules authorizing declaratory judgments are broad and we apply them liberally. Division XI, Rules of Civil Procedure; Gradischnig v. Polk County, Iowa, 164 N.W.2d 104 (Iowa). Nevertheless, a justiciable controversy must exist; we will not decide an abstract question simply because litigants desire a decision on a point of law or fact. McCarl v. Fernberg, 256 Iowa 93, 126 N.W.2d 427.

But the question may be close on whether a justiciable controversy exists. The difference between abstract questions and justiciable controversies is one of degree. We recently restated the governing principles in Green v. Shama, 217 N.W.2d 547 (Iowa). We quoted the following from Katz Investment Co. v. Lynch, 242 Iowa 640, 648, 47 N.W.2d 800, 805:

The difference between a...

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