City of Des Moines, Iowa, v. Des Moines Water Co.
| Citation | 230 F. 570 |
| Decision Date | 24 February 1916 |
| Docket Number | 4462. |
| Parties | CITY OF DES MOINES, IOWA, v. DES MOINES WATER CO. et al. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
The parties occupied in the court below the same relative positions as plaintiff and defendants as they do in this court, and we shall therefore refer to the city as the plaintiff and the water company as the defendant. The facts are, that the city, having been authorized by a vote of the people, in conformity with the laws of the state of Iowa, to purchase or construct a system of public waterworks instituted proceedings of condemnation under the laws of that state for the purpose of acquiring the system owned and operated by the defendant in the city of Des Moines. In conformity with the laws of that state the Supreme Court of the state, upon a petition of the plaintiff, appointed a condemnation court, which, after a hearing, fixed the value of the defendant's plant at $2,302,522, as of the 1st day of April, 1912. From this finding both parties appealed to the District Court of the county in which the waterworks are situated, as authorized by the laws of the state. Upon the petition of the defendants the cause was removed from that court to the District Court of the United States for that district.
On December 3, 1913, a judgment by consent was entered, fixing the value of the water plant at the sum found by the condemnation court, and giving the plaintiff one year from the date of the entry of the judgment to make payment for the same. The judgment further provided that upon such payment the defendant is required to turn over to the city the said water plant and system, with all its property and equipment including all additions and extensions made thereto since the 1st day of April, 1912. The judgment then proceeded: 'It is further ordered that the value of the additions and extensions to said plant made subsequent to the 1st day of April, 1912, and the amount to be paid to the Des Moines Water Company by the city of Des Moines therefor be reserved for future settlement between the parties or under the rules of practice and procedure in this court, as may later be determined, and the court reserves and retains jurisdiction of this cause for the purpose of making such further orders as may be necessary to the final settlement and determination of all matters pending herein.'
On November 19, 1914, the plaintiff filed an application for an extension of time within which to pay the money adjudged to the defendant for the waterworks. The petition, after reciting the proceedings hereinbefore set out, alleges: That at the time these condemnation proceedings were commenced bonds for the purpose of paying the purchase price of the water plant could be authorized by a majority vote of the qualified electors of the city, voting at an election called for such purpose. While these proceedings were pending, the General Assembly of the state amended that act so as to require the affirmative vote on the question of the issuance of the bonds, to be as large as a majority of all votes cast at the last preceding municipal election. At the regular municipal election in March, 1914, the question of the issuance of the bonds in an amount sufficient to pay the value of the plant and system, as found by the court of condemnation, was submitted to a vote of the people, and, although there was a majority in favor thereof of 2,538 votes, it was not as large as a majority of all the votes cast at the last preceding municipal election, as required by the amended act referred to. That thereafter on the 1st day of June, 1914, another special election, which had been called for that purpose was had, and, although at that election there was a majority of 2,783 votes in favor of the proposition, it was not a majority sufficiently large to comply with the requirements of the law. That on the 3d of November, 1914, the proposition was again voted on by the voters of the city, and although there was a majority of 1,810 votes in favor of the issuance of said bonds, the affirmative vote was not sufficiently large, as required by law. That for these reasons, and also the fact that the bond market is such that it would be impossible to sell the bonds, if authorized, and receive therefor a reasonable and fair price, and as it would be impossible to have another election in time to authorize the issuance of the bonds, and to sell the same in time to secure the money and pay it into this court on or before the 3d day of December, 1914, provided in the order of the court, it is impossible for the city to comply with said order. That as under the order and judgment of the court the water company is to retain the water plant and system and have the earnings thereof, and is to be paid for all additions and extensions to said plant and system made after April 1, 1912, no loss or damage could be or result to the defendant, if the time for such payment should be extended by the court.
The defendant filed objections to the granting of this extension, assigning three grounds: (1) That the judgment having been rendered by the court at the November, 1913, term, which term has long since adjourned and passed, the court was without jurisdiction to grant the petition. (2) That the allegations in the petition, even if the court had jurisdiction to act on it, are not sufficient in law to warrant the court in granting it. (3) Is practically the same as the second objection, adding thereto, that there is nothing in the petition that, even if it were granted, the plaintiff could acquire the funds with which to comply with the order except by borrowing money upon the issue of bonds, and the authority to issue such bonds having been defeated at three different elections called for that purpose, there is no likelihood that the bonds would ever be authorized by a vote of the people of the city.
Upon a hearing the court refused to grant the extension upon two grounds: (1) That the judgment was final, and the term at which it was rendered having expired, the court is powerless to modify it; (2) the judgment having been entered by consent of the parties, cannot in the absence of fraud or mistake be set aside by rehearing or appeal; nor can it be modified without the consent of the parties. From this judgment of the court this appeal is prosecuted.
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