City of Des Moines v. Manhattan Oil Co., 33971.

• Decision Date: 23 June 1922
• Docket Number: No. 33971.,33971.
• Citation: 193 Iowa 1096,188 N.W. 921
• Parties: CITY OF DES MOINES v. MANHATTAN OIL CO. ET AL.
• Court: Iowa Supreme Court

193 Iowa 1096

188 N.W. 921

CITY OF DES MOINES

v.MANHATTAN OIL CO. ET AL.

No. 33971.

Supreme Court of Iowa.

June 23, 1922.

Appeal from District Court, Polk County; Lawrence De Graff, Judge.

Supplemental opinion on petition for rehearing. Petition denied.

For former opinion, see 184 N. W. 823.C. W. Lyon, Edwin J. Frisk, Chauncey A. Weaver, Russell Jordan, and Blake & Blake, all of Des Moines, for appellant.

N. E. Coffin, D. Cole McMartin, and Stipp, Perry, Bannister & Starzinger, all of Des Moines, for appellees.

PER CURIAM.

In a petition for rehearing, it is earnestly contended by appellees that the act of the General Assembly authorizing the creation of restricted residence districts in cities is unconstitutional as attempting to convey legislative authority upon private citizens and making it obligatory upon the city council to establish such district when petitioned therefor by 60 per cent. of the owners of real estate therein, even though as a matter of fact the petitioners may own only a small fractional part of the property to be affected by such action.

[1] If this were the correct construction to be placed upon the language of the act, the objection thus made would be a serious one, but when read with care and with due regard to the familiar rule that, if the language of a statute is fairly capable of a meaning which is not constitutionally objectionable, it must be so construed, the suggested difficulty disappears. Let us look now to the terms of the statute itself. The first section containing the grant of authority is in the following words:

“Cities of the first class, including cities under the commission form of government and cities under special charter, may ( and upon petition of sixty per cent of the owners of the real estate in the district sought to be affected thereby shall) designate and establish by appropriate proceedings restricted residence districts within its limits.”

The italics and parenthetical marks are ours. For reasons already sufficiently considered, the validity of such a delegation of power to the city is not open to doubt, unless, as contended by counsel for appellees, it is to be held vitiated by the parenthetical clause which we have italicized.

[2][3] Opposed to any such ruling there are two insuperable obstacles: First, even if the clause be held invalid as an unconstitutional delegation of power to private citizens to control the legislative functions of the city council, its judicial condemnation does not involve nor require the condemnation of the entire act in which it is found--in other words, the clause may be obliterated entirely without affecting the validity of the grant of power to the city--and, second, to preserve the constitutionality of the act, the word “shall,” found in said clause, will be held to be not mandatory, but directory or permissive. Santo v. State, 2 Iowa, 165, 63 Am. Dec. 487;State v. Judge, 2 Iowa, 280;Duncombe v. Prindle, 12 Iowa, 1;Cook v. Marshall Co., 119 Iowa, 384, 93 N. W. 372, 104 Am. St. Rep. 283;Parish v. Elwell, 46 Iowa, 162;State v. Minor, 106 Iowa, 648, 77 N. W. 330;Jordan v. Court, 69 Iowa, 179, 28 N. W. 548;People v. District, 184 Ill. 597, 56 N. E. 956;Burns v. Henderson, 20 Ill. 264;Thompson v....