City of Creston v. Center Milk Products Co.

• Citation: 243 Iowa 611,51 N.W.2d 463
• Decision Date: 05 February 1952
• Docket Number: No. 47998,47998
• Parties: CITY OF CRESTON v. CENTER MILK PRODUCTS CO.
• Court: United States State Supreme Court of Iowa

Page 463

51 N.W.2d 463

243 Iowa 611

CITY OF CRESTON v. CENTER MILK PRODUCTS CO.

No. 47998.

Supreme Court of Iowa.

Feb. 5, 1952.

Rehearing Denied April 4, 1952.

Thos. E. Mullin, and J. D. Reynolds, of Creston, for appellant.

Marshall F. Camp, City Solicitor, of Creston, for appellee.

OLIVER, Justice.

I. The petition alleged defendant was operating a milk station at a specified location in a residence district in Creston in violation of City Ordinance No. 401, commonly known as the Zoning Ordinance. Defendant answered the ordinance was void because it was never published as required by statute, in that the boundaries of the several districts or zones were located only by reference to a map which was not published.

For convenience, references herein will be made to Code of Iowa 1950, rather than the 1927 Code which was current when the ordinance was adopted.

Section 366.7, Code of Iowa 1950, I.C.A., provides: 'Publication. All ordinances of a general or permanent nature, and those imposing any fine, penalty, or forfeiture, shall be published in some newspaper published and of general circulation in the city or town; * * *. When the ordinance is published in a newspaper it shall take effect from and after its publication; * * *.'

Section 2 of the Zoning Ordinance provides: (a). The city of Creston is divided into Residence, Business and Industrial Districts.

'(b). The various districts and their boundaries are hereby established as shown on the Zoning Map which is on file in the Mayor's office in the City Hall, and which with all its designations is hereby declared to be a part of this ordinance.

'(c). The boundaries of the various districts established by this ordinance are street lines, alley lines, property lines, or other lines shown on the Zoning Map * * *.'

The record shows that in 1929 the City Engineer furnished the Zoning Commission of Creston a map of the city and assisted in the work of determining the various zones, etc. The statutes governing Municipal Zoning, now Chapter 414, Code of Iowa 1950, I.C.A., were in effect at that time. In accordance therewith the Zoning Commission made its preliminary report to the City Council, recommending the boundaries of the districts and the proposed Zoning Ordinance thereto attached, and published notice of a public hearing upon the report, to be held February 5, 1930. Following this hearing the Commission delivered the zoning map to the City Engineer with the zones outlined. He tinted the map to show the zones in different colors and returned it to the Commission.

Shortly thereafter the Commission filed its final report with the City Council. The zoning map was hung in the open in the office of the Mayor in the City Hall. This room was also the office of the City Clerk. At the time of the trial the clerk's book of minutes of the council meetings for this period had been lost and could not be found and there was no evidence concerning the action taken by the Council when the final report and zoning map were received. However, the record shows the City Clerk, March 18, 1930, published a notice reciting the Commission had submitted its final report recommending the boundaries to the proposed district, regulations and restrictions and that a public hearing in relation to such boundaries, regulations and restrictions would be held at the council chamber April 7, at 8 P.M. It may be fairly inferred the Council directed the giving of this notice and that prior thereto it had approved the proposed Ordinance and Zoning Map. April 21, 1930, the City Council enacted the Ordinance without change in the zoning map or any of the proposed provisions. Thereafter the ordinance was published.

Plaintiff contends the reference in the published ordinance to the zoning map 'on file in the Mayor's office in the City Hall and which * * * is * * * a part of this ordinance', sufficiently complied with Code section 366.7, I.C.A. The sufficiency of such a publication has never been determined by this court. Among authorities cited by plaintiff or tending to support its position are: City of Tucson v. Stewart, 45 Ariz. 36, 40 P.2d 72, 96 A.L.R. 1492; City of Napa v. Easterby, 76 Cal. 222, 18 P. 253; Abbott on Municipal Corporations (1905 Ed.) Vol. 2 at page 1332; Northport v. Walsh, 241 App.Div. 683, 269 N.Y.S. 966, affirmed 265 N.Y. 458, 193 N.E. 270. Village of Williston Park v. Israel et al., 191 Misc. 6, 76 N.Y.S.2d 605, 607, 608, discusses the factual situation and holding in the Northport case.

Defendant contends the ordinance never took effect because a copy of the Zoning Map was not published and that the reference to the map in the published ordinance was insufficient because the map was not a previously established public record. Defendant cites Village of Durand v. Love, 254 Mich. 538, 236 N.W. 855; Thompson Scenic Ry. Co. v. McCabe, 211 Mich. 133, 178 N.W. 662; W. H. Barber Co. v. City of Minneapolis, 227 Minn. 77, 34 N.W.2d 710; Sherwin v. City of Erie, 30 Pa. D. & C. R. 701; Fierst v. William Penn Memorial Corp., 311 Pa. 263, 166 A. 761; Katz v. Higson, 113 Conn. 776, 155 A. 507; Inhabitants of West Springfield v. Mayo, 265 Mass. 41, 163 N.E. 653; 37 Am.Jur. 785, Municipal Corporations, section 163; McQuillian Municipal Corporations, 2nd Ed. Revised, Vol. 2, section 736.

See also Milano v. Town of Patterson, 197 Misc. 457, 93 N.Y.S.2d 419; State v. Waller, 143 Ohio St. 409, 55 N.E.2d 654; Burmore Co. v. Smith, 124 N.J.L. 541, 12 A.2d 353, 355; McKann v. Town of Irvington, 133 N.J.L. 575, 45 A.2d 494; City of

Hazard v. Collins, 304 Ky. 379, 200 S.W.2d 933; Berrata v. Sales, 82 Cal.App. 324, 255 P. 538; 62 C.J.S., Municipal Corporations, § 427, pages 819, 820, Municipal Corporations, section 427c(2).

The trial court found the zoning map was accepted by the City Council prior to the passage of the Ordinance and concluded it thus became a public record of the City, the reference to which in the published ordinance was sufficient, without publishing the map itself. However, we do not deem it necessary that this proposition be determined.

As pointed out by the trial court, the ordinance, if valid, had been in effect for twenty-one years at the time defendant assailed it. Under it the City had granted more than four hundred building permits. In general the owners and occupiers of property in Creston had relied upon its validity in dealing with...