Cascaden v. City of Waterloo

• Decision Date: 15 December 1898
• Parties: CASCADEN v. CITY OF WATERLOO ET AL.
• Court: Iowa Supreme Court

106 Iowa 673

77 N.W. 333

CASCADEN

v.CITY OF WATERLOO ET AL.

Supreme Court of Iowa.

Dec. 15, 1898.

Appeal from district court, Blackhawk county; A. S. Blair, Judge.

Plaintiff, a taxpayer in the city of Waterloo, brings this action to restrain the defendants, the mayor and council of said city, from enforcing a certain resolution creating a new ward in said city. Defendants' demurrer to plaintiff's petition was sustained, and, plaintiff electing to stand on his petition, judgment was rendered against him, from which he appeals. Reversed.Boies & Boies, for appellant.

J. E. Williams, J. A. Mears, Courtright & Arbuckle, and Alford & Gates, for appellees.

GIVEN, J.

1. The petition filed March 16, 1898, and an amendment thereto, are, in substance, as follows: That the defendant city is a city of the second class; that the other defendants are the mayor and city council thereof, and that plaintiff is a resident of said city, is the owner of taxable real and personal property therein, and has been a taxpayer in said city for many years; that on the 14th day of September, 1896, an ordinance was duly adopted dividing said city into four wards, under which the defendant officers were duly elected; that on January 24, 1898, said city council, by a vote of four for to two against (the other two members being absent), adopted a resolution creating an additional ward out of portions of the Third and Fourth, to be known as the Fifth ward. Said resolution provided: “That the necessary steps be taken at the next city election for the election of two councilmen from said Fifth ward, hereby created.” It is alleged that said resolution is void for the reasons that it was not adopted by the required vote; that it does not contain the entire ordinance or sections attempted to be revised, amended, or repealed thereby, and was not passed in the manner required by law for the passage of ordinances, for that it was not read on three different days, nor the reading dispensed with, and was not passed by a majority of the whole council. It is further alleged that defendants will, unless restrained, proceed under said resolution to hold and cause to be held in said Fifth ward an illegal and unauthorized election, and will disburse the public revenues to which plaintiff has contributed in defraying the expenses thereof; that they will declare persons elected to be members of the city council, and entitled to compensation as such and as members of the board of equalization out of the public moneys, to which plaintiff has and will hereafter contribute. Plaintiff prays for a decree enjoining such action, and for general relief. Defendants demurred to the petition upon the following grounds: “(1) The petition shows upon its face that the plaintiff is not entitled to the relief demanded, or to any relief. (2) No statements or allegations are contained in said petition to invoke the powers or give jurisdiction to a court of equity. (3) The petition shows upon its face that the plaintiff has a speedy and adequate remedy at law. (4) The petition shows upon its face that the plaintiff has no interest in the subject-matter other and differently than any other citizen of the city or general public has, and for that reason said plaintiff cannot maintain this action.” This demurrer was sustained generally.

2. The first question discussed is whether the petition shows that plaintiff is entitled to maintain this action. It shows that he has, and will, as a taxpayer, contribute to the city's revenues, and that, unless restrained, the defendants will proceed to carry out said illegal resolution, and to illegally pay the expenses thereof from said revenues; and these allegations we must, for the purpose of the demurrer, take as true. Counsel for appellees say: “In this country the right of resident taxpayers to resort to equity to restrain municipal corporations or their officers from transcending their lawful powers in any mode which will injuriously affect the taxpayers, such as making unauthorized appropriations of corporate funds, or an illegal disposal of corporate property, or levying or collecting void or illegal taxes or assessments, is recognized in numerous cases, and is, perhaps, the prevailing doctrine on this subject; but this rule is one that has grown up in most of the states of the Union in recent years, and is really an exception to the general rule of equity, and only applies to prevent the illegal disbursement of corporate funds, or the illegal disposal of corporate property.” Again, they say: “The rule that a taxpayer may maintain an action to enjoin a municipality or its officers from illegally disbursing or appropriating corporate funds, or disposing of corporate property, has been followed by the courts of Iowa in numerous cases, nearly all of which are cited by appellant in his argument.” The claim is that this is not an action to restrain the using of the public funds to pay expenses in carrying out said resolution, and in compensating the persons elected, but to restrain defendants from fixing voting places, holding an election, and issuing certificates of election to persons elected. We do not so view the petition. It asks to restrain the carrying out of said resolution, not alone because it is illegal to do so, but because it is illegal, and in doing so the public revenue will be illegally expended. The case is clearly within the rule that entitles a taxpayer to maintain an action to restrain an illegal disposal of the corporate funds. Of the cases cited we note Brockman v. City of Creston, 79 Iowa, 587, 44 N. W. 822;Snyder v. Foster, 77 Iowa, 638, 42 N. W. 506. This view of the petition answers appellees' contention that appellant's remedy is adequate at law, and that the matters alleged are not sufficient to call for equitable relief.

3. The next question is whether the city council could create the new ward by resolution, appellant's contention being that it can only be done by ordinance. There is no dispute but that the city council had power to create the new ward. Code, § 641. Appellant insists that the statute requires this power to be exercised by ordinance, and cites many authorities to the effect that, where the statute requires a power to be exercised in a particular manner, it cannot be exercised in any other. Of the cases cited we only mention Ryce v. City of Osage, 88 Iowa, 558, 55 N. W. 532;Henke v. McCord, 55 Iowa, 378, 7 N. W. 623;Blanden v. City of Ft. Dodge, 102 Iowa, 441, 71 N. W. 411;Noyes v. Mason City, 53 Iowa, 418, 5 N. W. 593. Appellees concede that such is the law, but contend “that the statutes, or rather the law, of this state does not require that wards be established by ordinance.” This action being under the present Code, we turn to it to solve this question, only referring to prior legislation and decisions thereon so far as they aid in construing the present statute. The legislation in respect to cities and towns is largely, if not entirely, contained in title 5 of the present Code, which title is devoted entirely to that subject, and is divided into 14 chapters. An examination of title 5 shows that municipal corporations are authorized to act by ordinance and by resolution,--sometimes by ordinance only, sometimes by resolution only, sometimes by ordinance or resolution. For instance, sections 640, 669, 675, 676, and paragraph 11 of section 668, require powers conferred to be exercised by ordinance; sections 628 and 810 allow the powers therein referred to to be exercised by resolution; and sections 619, 620, 751, 798, 799, 802, 811, 825, 836, 841, and 842 permit the powers therein referred to to be exercised by ordinance or resolution. Section 641, authorizing the creation and changing of wards, is silent as to whether that power shall be exercised by ordinance or resolution. Section 680 is as follows: “Municipal corporations shall have power to make and publish from time to time ordinances not inconsistent with the laws of the state for carrying into effect or discharging the powers and duties conferred by this title, and such as shall seem necessary and proper to provide for the safety, preserve the health, promote the prosperity, improve the morals, order, comfort and...