City of Council Bluffs v. Cain

• Decision Date: 21 December 1983
• Docket Number: No. 83-94,83-94
• Citation: 342 N.W.2d 810
• Parties: CITY OF COUNCIL BLUFFS, a Municipality, Appellant, v. Lyle CAIN, Appellee.
• Court: Iowa Supreme Court

Page 810

342 N.W.2d 810

CITY OF COUNCIL BLUFFS, a Municipality, Appellant, v. Lyle CAIN, Appellee.

No. 83-94.

Supreme Court of Iowa.

Dec. 21, 1983.

Richard B. Wade, Council Bluffs, for appellant.

Lyle A. Rodenburg, Council Bluffs, for appellee.

Considered by REYNOLDSON, C.J., and UHLENHOPP, HARRIS, McCORMICK, and McGIVERIN, JJ.

HARRIS, Justice.

Defendant owns a forty acre farm which has been the property of his family for more than seventy-five years. The farm is within the corporate limits of the city of Council Bluffs. Since prior to the time the farm was annexed to the city, defendant and his family have conducted a horse breeding business there, a business in which defendant continues to be engaged.

In 1982 the city passed an ordinance, Council Bluffs, Ia., Municipal Code §§ 4.20.280-4.20.410 (1982), which in part imposed a number of regulations on the keeping of farm animals. Section 4.20.280 requires anyone who keeps farm animals inside the city limits to obtain a permit and pay a $25 licensing fee. The permit may be obtained only after an inspection for compliance with the sanitation regulations set out in other sections of the ordinance. Those regulations deal with manure removal, fences, animal populations, feeding conditions, feed storage, and minimum distances from residences.

Defendant did not obtain a permit and was charged with violating section 4.20.280, a simple misdemeanor. The magistrate dismissed the charge, finding the ordinance unconstitutional. On appeal the district judge affirmed the magistrate's judgment. On the city's application we granted discretionary review.

I. We first consider defendant's contention that farm animal control cannot be the subject of a municipal ordinance. Defendant thinks the city lacks the power to regulate farm animals because the subject has been preempted by state law. It is a well established principle that municipal governments may not undertake to legislate those matters which the legislative branch of state government has preserved to itself. There are alternative ways for a state legislature to show such a preservation. One is of course by specific expression in a statute. Another is, as defendant suggests, by covering a subject by statutes in such a manner as to demonstrate a legislative intention that the field is preempted by state law. See City of Vinton v. Engledow, 258 Iowa 860, 867, 140 N.W.2d 857, 861 (1966); 56 Am.Jur.2d Municipal Corporations § 375 (1971).

Cities are not necessarily precluded from enacting ordinances on matters which have been the subject of state statute. The traditional test has been whether an ordinance prohibits an act permitted by a statute, or permits an act prohibited by a statute. See Towns v. City of Sioux City, 214 Iowa 76, 84, 241 N.W. 658, 662 (1932). In the past, even if an ordinance passed this test it could be invalidated if the municipality was not expressly empowered by the state to enact it. See Dotson v. City of Ames, 251 Iowa 467, 470-72, 101 N.W.2d 711, 713-14 (1960); Merriam v. Moody's Executors, 25 Iowa 163, 170 (1868).

Iowa has since adopted the home rule constitutional amendment. See Iowa Const. art. III, § 38A. See also Iowa Code § 364.2(2) and (3) (1983). Under home rule, a city has the power to enact an ordinance on a matter which is also the subject of statute if the ordinance and statute can be harmonized and reconciled. City of Iowa City v. Westinghouse Learning Corp., 264 N.W.2d 771, 773 (Iowa 1978); Chelsea Theatre Corp. v. Burlington, 258 N.W.2d 372, 373 (Iowa 1977); Airport Commission for City of Cedar Rapids v. Schade, 257 N.W.2d 500, 505 (Iowa 1977); Green v. City of Cascade, 231 N.W.2d 882, 890 (Iowa 1975).

We think the ordinance challenged here easily can be harmonized with state law. To be sure there are extensive state regulations and licensing provisions for farmers who keep or breed livestock. See Iowa Code ch. 162 (registration of animals); chs. 163-166C (prevention of disease among animals); section 163.26, et seq. (feeding garbage to animals); section 163.40, et seq. (breeding bulls); ch. 167 (use and disposal of dead animals); ch. 188 (estrays and trespassing animals). See also Iowa Admin. Code ch. 11 (regulation of poultry and egg production); ch. 12 (dead animal disposal); ch. 16 (prevention of livestock diseases); chs. 30-31 (regulation of dairy production).

Nevertheless we find no statute or regulation expressly permitting what the challenged ordinance prohibits or expressly prohibiting the city from requiring a permit and fee for keeping farm animals within city limits. The city plainly holds the power to adopt a farm animal control ordinance. Defendant's contention to the contrary is without merit.

II. Both the magistrate and the district judge found the ordinance is unconstitutional because it is an arbitrary, unreasonable, and capricious deprivation of property without due process of law, under both the state and federal constitutions. There is no dispute about the rule that, to be constitutional, an ordinance must have a definite, rational relationship to a legitimate purpose. City of Cedar Falls v. Flett, 330 N.W.2d 251, 255 (Iowa 1983). Defendant, however, has not established unconstitutionality on this ground. The ordinance is not one that can be found unreasonable on its face and defendant presents no record on which to base his contention.

A party who challenges an ordinance has the burden of proving it unconstitutional, and must negate every reasonable basis upon which the ordinance may be sustained. Id. at 254. This means that the challenger has the burden of producing the evidence, and persuading the court, of the ordinance's lack of a rational nexus with its supposed purpose. Cf. Bartlett & Co. Grain v. Board of Review of the City of Sioux City, 253 N.W.2d 86, 88 (Iowa 1977); McDowell v. Town of Clarksville, 241 N.W.2d 904, 908 (Iowa 1976).

We have held that an ordinance can be struck down if it is plainly unreasonable on its face. See Iowa City v. Glassman, 155 Iowa 671, 674, 136 N.W. 899, 901 (1912). But the attack on the ordinance here is poorly armed because there was no evidentiary showing. A contention of unreasonableness generally should not be addressed to the private views of judges; unreasonableness should appear from demonstrated or judicially noted facts. An evidentiary showing should be foregone only when a challenger is confident that the unreasonableness appears as a matter of law.

The need for production of testimony or other evidence stems from the judiciary's deference to the considered judgment of legislative bodies. A court's invalidation of an ordinance on the ground that it is not rationally related to its purported end is tantamount to substitution of the court's opinion for that of the legislative officials who enacted it. Courts endeavor to avoid this when unreasonableness is not clearly demonstrated. See MRM, Inc. v. City of Davenport, 290 N.W.2d 338, 343 (Iowa 1980); Adams v. Bonacci, 287 N.W.2d 154, 156 (Iowa 1980). If reasonableness of the ordinance's nexus to its purported end is fairly debatable, it must be allowed to stand. See Business Ventures, Inc. v. Iowa City, 234 N.W.2d 376, 381 (Iowa 1975); Brackett v. City of Des Moines, 246 Iowa 249, 260, 67 N.W.2d 542, 547 (1954).

Of course courts are not blind to obvious facts that were persuasive to legislators in voting for or against a measure. They are within judicial scrutiny and can be weighed in the determination of a due process challenge. See C. Antieau, Modern Constitutional Law § 15:38 (1969). Courts are often asked to, and frequently do, take judicial notice of these facts. But there is risk for a challenger of a provision who fails to develop a record of the facts which were judicially noted.

Judicial notice at any level has dangers of injustice, but when a lawyer defending his client against charges of crime must at trial guess what Justices of the Supreme Court will secretly judicially notice on appeal, the task of the advocate becomes almost impossible.... When a trial court takes judicial notice of facts, it must inform counsel of this and give him a fair opportunity to show that the facts noticed are neither "common knowledge" nor correct. Neither the United States Supreme Court nor any appellate court should ever take judicial notice of any facts that might control constitutional adjudication without informing all counsel and sending the case back to the trial court to give counsel an opportunity to show the erroneous or irrelevant nature of the facts judicially noticed. For Supreme Court Justices to take judicial notice of facts determinative of constitutional issues is to increase greatly the danger, in the words of Justices Holmes, that "the decision will depend on a judgment or intuition more subtle than any articulate major premise."

Id. (footnotes omitted).

After the challenger of an ordinance produces evidence, the city should, but is not required to, produce rebuttal evidence. See, e.g., Incorporated Town of Carter Lake v. Anderson Excavating and Wrecking Co., 241 N.W.2d 896, 902 (Iowa 1976) (city produced testimony of environmental quality department inspector and county health officer in support of sanitary landfill ordinance); Keller v. City of Council Bluffs, 246, 204, 208, 66 N.W.2d 113, 117 (1954) (city produced evidence in support of zoning ordinance that building could not be used as private dwelling). When the city produces no evidence it assumes the risk that the court will find the challenger's burden of persuasion is sustained. Cf. McDowell, 241 N.W.2d at 908.

We gather from the district court ruling that there was no evidentiary showing here and no request that facts be judicially noted. Certainly there is no record of farming practices, population density, sanitation or public health needs, or of any other matter which might shed light on the reasonableness of the ordinance. All such matters were left to the personal...