Beers v. Inc. Town of Gilmore City

• Decision Date: 08 January 1924
• Docket Number: No. 35316.,35316.
• Citation: 197 Iowa 7,196 N.W. 602
• Parties: BEERS ET AL. v. INCORPORATED TOWN OF GILMORE CITY ET AL.
• Court: Iowa Supreme Court

197 Iowa 7

196 N.W. 602

BEERS ET AL.

v.INCORPORATED TOWN OF GILMORE CITY ET AL.

No. 35316.

Supreme Court of Iowa.

Jan. 8, 1924.

Appeal from District Court, Pocahontas County; D. F. Coyle, Judge.

Action in equity to enjoin the construction of a disposal plant and the discharge of the effluent therefrom upon the lands of plaintiffs. Decree as prayed. Defendant appeals. Affirmed in part; reversed in part.Burnstedt & Hemingway, of Webster City, for appellant.

Kelleher & Mitchell, of Ft. Dodge, for appellees Beers and others.

T. F. Lynch of Pocahontas, for appellee sheriff.

STEVENS, J.

Appellees are the owners of 160 acres of land lying south of a public highway known as a primary road, extending west from the town of Gilmore City. Three of the 40's abut upon the highway. The remaining 40 is immediately south of the west 40. The east 40 is owned jointly by appellees--the remaining 40's are owned separately by the appellee Emma Beers.

The town council of Gilmore City, on October 5, 1920, passed a resolution of necessity providing for the condemnation of a site upon appellees' east 40 for a disposal plant. A sheriff's jury, composed exclusively of citizens and freeholders of the town of Gilmore City, were appointed and assessed damages for a site for such disposal plant, which consisted of a tract about 300 feet west of the east line of appellees' farm and north of the highway about 250 feet square. A disposal plant was constructed during the pendency of this litigation; the effluent therefrom being carried through a tile laid in the public highway to a point immediately opposite a ditch or drain across appellees' land, into which it flows from the highway, and through which it is carried off to the southwest in the direction of Lizard creek, into which the ditch empties. The damages awarded by the sheriff's jury were paid into court as provided by law, pending the disposition of an appeal by the owners of the land to the district court from the award. Nothing was done by appellant to condemn a right of way across appellee's land for an outlet, and no damages were awarded by the sheriff's jury on account thereof.

It is conceded that the surface drainage of Gilmore City is in three directions, about one-third of the watershed being drained across, or in the direction of, appellees' land. The sewer system is so located and constructed that all of the water and organic matter discharged into it is carried to the disposal plant from which, as stated, the effluent is taken through a 12-inch tile down the highway to the ditch across appellees' land. This tile was placed in the highway under an arrangement with the board of supervisors.

The court below held that the proceedings to condemn the site for a disposal plant were invalid, for the reason that the jury were all taxpayers of Gilmore City and directly or indirectly interested in the improvement, and that section 884 of the Code, which is as follows:

“Proceedings for condemnation of land as contemplated in this title shall be in accordance with the provisions relating to taking private property for works of internal improvement, except that the jurors shall have the additional qualification of being freeholders of the city or town”

--if given effect according to its express terms, is unconstitutional, that appellant has no right to collect water in its sewerage system and discharge it upon appellees' premises without compensation, and that by doing so, it has created a nuisance in the immediate vicinity of, and upon, the lands of appellees, and granted a permanent injunction restraining appellant from maintaining a disposal plant upon, or discharging the effluent therefrom across, their premises.

[1] We shall first dispose of the contention of appellees that the condemnation proceedings were void for the reason that the damages were not awarded by an impartial jury, and that section 884 of the Code, if construed according to its express terms, is unconstitutional. Counsel upon both sides cite decisions of this and other courts to sustain their respective contentions. It seems to us that the authorities cited are in no sense in conflict. The circumstances in one case may disclose that a tribunal constituted to hear and determine issues affecting property rights is so directly, or even indirectly, interested as to be disqualified, while, under other circumstances, the disqualification does not exist. It is elementary that a judge shall not sit in his own case. The following authorities cited by appellees are largely of this character: Stahl v. Board of Supervisors, 187 Iowa, 1342, 175 N. W. 772, 11 A. L. R. 185;Peirce v. Bangor, 105 Me. 413, 74 Atl. 1039;Chesapeake, etc., Canal Co. v. Binney, 5 Fed. Cas. 561 No. 2,645; Rock Island & Alton R. Co. v. Lynch, 23 Ill. 645;Peninsular Railway Co. v. Howard, 20 Mich. 18;Strang v. Railroad Co., 16 Wis. 635;Johnson v. City of Waterloo, 140 Iowa, 670, 119 N. W. 70;Cason v. Ottumwa, 102 Iowa, 99, 71 N. W. 192. As opposed to these authorities, appellant relies upon the following: Phillips v. Watson, 63 Iowa, 28, 18 N. W. 659;La Plant v. Marshalltown, 134 Iowa, 261, 111 N. W. 816;City of Bridgeport v. Giddings, 43 Conn. 304;State v. Wright, 54 N. J. Law, 130, 23 Atl. 116;McKusick v. City of Stillwater, 44 Minn. 372, 46 N. W. 769;City of Minneapolis v. Wilkin, 30 Minn. 140, 14 N. W. 581; Loucheim v. Hemsley, 59 N. J. Law, 149, 35 Atl. 795;In re Simmons et al., 166 App. Div. 752, 151 N. Y. Supp. 537.

[2][3] The effect of the holding of the above cases is that a statute which requires that a jury, in condemnation proceedings in favor of a city or town, shall be selected from freeholders of said city or town is not unconstitutional. The theory is that their interest in the subject-matter is too remote to disqualify them from serving as jurors in such proceedings. We held, in La Plant v. Marshalltown, supra, that a judge of the district court was not disqualified from trying a case in which the city in which he resided was a party, merely because he was a freeholder and taxpayer therein. The disqualification exists only when the tribunal is interested in the subject-matter before it in such a way and to such an extent as that same is likely to influence his judgment and deprive the property owner of an award by an impartial jury. With the wisdom of the statute we have nothing to do. No authority is cited, nor have we been able to find any, holding a statute similar to section 884 unconstitutional. The statute is mandatory in form, and, unless it contravenes some provision of the Constitution, state or federal, must be given effect. We are satisfied that it is not in conflict with the fundamental law, and, as the jury selected by the sheriff in this proceeding possessed the qualifications fixed by the statute, it was not illegal, nor are the condemnation proceedings invalidated because of the possible...