Dempsey v. City of Burlington

• Decision Date: 22 September 1885
• Citation: 24 N.W. 508,66 Iowa 687
• Parties: DEMPSEY AND OTHERS v. CITY OF BURLINGTON AND OTHERS.
• Court: Iowa Supreme Court

66 Iowa 687

24 N.W. 508

DEMPSEY AND OTHERS

v.CITY OF BURLINGTON AND OTHERS.

Supreme Court of Iowa.

Filed September 22, 1885.

Appeal from Des Moines circuit court.

Plaintiffs brought this action in equity for the purpose of having a certain ordinance of the city of Burlington declared invalid. The circuit court on a hearing of the case on its merits dismissed the petition. Plaintiffs appeal.Hall & Huston, for appellants, W. H. Dempsey and others.

Thomas Hedge, Jr., Poor & Baldwin, and J. J. Seerley, City Solicitor, for appellees, City of Burlington and others.

REED, J.

Plaintiffs are the owners of certain lots in Barnes' addition to the city of Burlington. This addition was laid out and platted in 1873. It is bounded on the east by Sumner street, on the south by Barnes street, and on the west by May street, and before the passage of the ordinance in question it was bounded on the north by an alley which extended from May to Sumner streets. This alley affords the only way of access to the rear of the lots owned by plaintiffs. The ordinance in question was passed by the city council on the thirteenth of June, 1881. It assumes to vacate said alley for 117 feet west from Sumner street, and to grant the interest and estate of the city therein to George H. Higbee. It is entitled “An ordinance vacating a portion of the alley between Barnes and Angular streets, and releasing the interest of the city therein to George H. Higbee.” It contains two sections. By the first section the portion of the alley in question is vacated, and by the second section the land within the portion of the alley vacated is granted to said Higbee.

At about the same time the ordinance was passed Higbee conveyed to the city a strip of land extending from the east end of the unvacated portion of the alley to Barnes street. The consideration of this conveyance was the grant of the ground in the vacated portion of the alley, and it was made by Higbee and accepted by the city for the purpose of extending the alley to Barnes street. Plaintiffs have a way of access to the rear of their lots by the alley as thus changed, but the distance necessary to be traveled in passing between the business portion of the city and the rear of the lots is materially increased by the change.

Plaintiffs claim that the ordinance is void, because-- First, it contains more than one subject,--the subject of the first section being the vacation of the portion of the alley in question, and that of the second section being a grant of land to said Higbee; and, second, the council had no jurisdiction to vacate the alley, as notice of the application for the change had not been served on the owners of the lots abutting on the alley.

1. Does the ordinance contain more than one subject? If it does, it is void. It is provided by section 489 of the Code that “* * * no ordinance shall contain more than one subject, which shall be clearly expressed in its title.” This provision is a limitation of the power of the council to enact ordinances. By its terms it is mandatory, and ordinances passed in violation of it are inoperative because of the want of power in the council to enact them. The evils which the legislature intended to prevent by it were the incorporation in one ordinance of different provisions intended to affect different interests or accomplish different objects, and the enactment of provisions of which the title to the ordinance containing them would give no indication. But we think it does not forbid the enactment in a single ordinance of all the legislation which may be necessary for the accomplishment of a single object. The different provisions necessary for the accomplishment of the object intended in that case would all relate necessarily to the same subject. The city has the power to lay off, widen, straighten, or extend streets and alleys within its limits. Code, § 464. It also has the power to acquire by purchase or condemnation the real estate necessary therefor, and the council has power to pass such ordinances as may be necessary for the proper exercise of these powers. If the council should provide by ordinance for the widening of a certain street, and for acquiring the necessary real estate therefor, and for paying for the same out of the...