Cook v. City of Independence

• Decision Date: 11 March 1907
• Citation: 110 N.W. 1029,133 Iowa 582
• Parties: BESSIE P. COOK, Appellee, v. CITY OF INDEPENDENCE, Appellant
• Court: Iowa Supreme Court

110 N.W. 1029

133 Iowa 582

BESSIE P. COOK, Appellee, v. CITY OF INDEPENDENCE, Appellant

Supreme Court of Iowa, Des Moines

March 11, 1907

Appeal from Buchanan District Court.-- HON. A. S. BLAIR, Judge.

FROM the action of the city council of the defendant town in levying an assessment for the construction of a sewer in front of plaintiff's property, plaintiff appealed to the district court. Upon trial in tat court the assessment was canceled and set aside, and defendant appeals.-- Affirmed.

Affirmed.

H. C Chappell, for appellant.

Cook & Leach and R. A. Cook, for appellee.

OPINION

DEEMER, J.

The proposed improvement was authorized by ordinance, which it is claimed was passed by the city council in July of the year 1900. Claim is made that this ordinance was not legally adopted. The records of the city council show the following with reference thereto:

Council Chamber, Independence, Iowa.

July 11th, 1900.

Roll call: Members all present except Councilmen O'Brien and Blamer. . . . 'A bill for an ordinance to provide for the construction of sewers in the city of Independence, Iowa to regulate the use of the same and establishing a sewer district,' was then presented and read. Councilman Plane moved that the reading of the bill just read be considered its first reading, which prevailed; each member of the council present having voted aye. Absent, Councilmen O'Brien and Blamer. Councilman Plane moved that the rules be suspended, and the bill read a second time, which prevailed; each member of the council present voting aye. Absent, Councilmen O'Brien and Blamer. Councilman Davison moved that the rules be suspended, and the bill read a third time, which prevailed; each member of the council present having voted aye. Absent, Councilmen O'Brien and Blamer. The bill was then read the third time. The bill was then read by its title, put upon its passage, and its title agreed to each member of the council present having voted aye. Absent Councilmen O'Brien and Blamer. . . .

Exhibit A -- An Ordinance.

An ordinance to Provide for the Construction of Sewers in the City of Independence, Iowa to Regulate the Use of the Same and Establishing a Sewer District.

By section 683 of the Code it is provided that: "On the passage or adoption of every by-law, ordinance, and every such resolution or order, the yeas and nays shall be called and recorded. No money shall be appropriated except by ordinance." Courts almost universally hold that such requirements are mandatory, and that in the passage of an ordinance, which is a legislative act, the same formalities are required as in the passage of laws by the Legislature under constitutional directions and limitations. See Culter v. Town, 40 Ark. 105. This question was thoroughly considered by Judge Cooley, in Steckert v. City, 22 Mich. 104, and, in a lucid opinion covering the entire subject, the conclusion was reached that such statutes are mandatory, and are not satisfied by a record stating that an ordinance was adopted unanimously on call, and that neither the spirit nor the purpose of the act can be satisfied without entry on the minutes showing who voted on each resolution and how the vote of each was cast; in other words, the ayes and nays on each resolution must be entered at large upon the minutes. The reasoning used by the learned judge is unanswerable. See, also, sustaining the same rule, Pickton v. City, 10 N.D. 469 (88 N.W. 90); Morrison v. City of Lawrence, 98 Mass. 219. We have adopted the mandatory rule for this State. See Olin v. Meyers, 55 Iowa 209; Laughlin v. City, 63 Iowa 652; Markham v. City, 122 Iowa 689.

The case now before us is clearly distinguishable from Marion Water Company v. City, 121 Iowa 306, 96 N.W. 883, and Town of Bayard v. Baker, 76 Iowa 220, 40 N.W. 818. In the former case the minutes of the meeting showed who were present, that the roll was called, and that the vote was unanimously aye. In the instant case, there is no showing as to who were present, no...