Dotson v. City of Ames, 49902

• Decision Date: 08 March 1960
• Docket Number: No. 49902,49902
• Parties: R. A. DOTSON, Appellant, v. CITY OF AMES, a municipal corporation; Pearle P. Dehart, as Mayor thereof; W. Bernard King, J. C. Schilletter, Conrad Lawlor, J. D. Armstrong, Edward Judge and Stewart Smith, as Councilmen thereof; L. E. Rosebrook, as Health Officer thereof; each of the above-named individuals as the Board of Health of the said City of Ames: John Carpenter, as City Manager thereof; and Austin T. Getz, as Sanitarian thereof, Appellees.
• Court: Iowa Supreme Court

Page 711

101 N.W.2d 711

251 Iowa 467

R. A. DOTSON, Appellant, v. CITY OF AMES, a municipal corporation; Pearle P. Dehart, as Mayor thereof; W. Bernard King, J. C. Schilletter, Conrad Lawlor, J. D. Armstrong, Edward Judge and Stewart Smith, as Councilmen thereof; L. E. Rosebrook, as Health Officer thereof; each of the above-named individuals as the Board of Health of the said City of Ames: John Carpenter, as City Manager thereof; and Austin T. Getz, as Sanitarian thereof, Appellees.

No. 49902.

Supreme Court of Iowa.

March 8, 1960.

Joseph H. Buchanan, Ames, for appellant.

Rex B. Gilchrist, City Atty., Ames, for appellees.

THOMPSON, Justice.

At all times material the plaintiff was the owner of 48.65 acres of land lying immediately west of, and outside, the city limits of the defendant city; and of 28.20 acres immediately adjoining to the east, and so within the city limits. In the southeast corner of the latter tract, inside but immediately adjacent to the south corporation line of the city, the plaintiff had a fenced enclosure, .625 acres in extent, in which he kept two horses. This enclosure was fully sodded and contained nothing offensive or objectionable except as the presence of animals might render it so.

At this time there was in force an ordinance of the City of Ames which we set out herewith:

'57-5 Public Nuisances. The following are hereby declared public nuisances and may be abated in the manner as herein provided.

'57-5.5 Keeping of Cattle, Horses, Sheep, or Swine. The keeping of any cattle, horses, sheep, goats, or swine within the city, except in pens with dry floors or pens free from all filth and standing water, or the keeping of the aforesaid animals in any pen or building within one hundred (100) feet of any well, or within two hundred (200) feet of a dwelling house occupied by a family other than the family of the owner of such animals, except by the consent of the head of such family, and the owner of such dwelling house is a public nuisance.'

Then followed provisions for abatement of nuisances and for criminal penalties against those found to be in violation of the provisions of the ordinance. It is the above quoted parts of the ordinance which are under attack in the case before us. The trial court found the challenged portions of the ordinance valid, denied plaintiff's request for an injunction and, in effect, dismissed his petition.

I. The case was tried upon a stipulation of fact, in which it was agreed, among other items, that the issues raised were 1, whether plaintiff might avail himself of a declaratory judgment action; 2, whether the equitable forum was available to plaintiff and 3, whether the City of Ames had the right to enact and its officers to enforce those parts of the ordinance set out above. The trial court found the first two issues with the plaintiff. While the defendants might have supported the judgment by showing that the trial court erred in so doing, and so they were entitled to judgment even if the court was in error in its holding on the third point stated, they have not done so. They do not argue the propriety of the rulings on Points 1 and 2, and we give them no further consideration.

II. The contested point in the case is the validity of the ordinance as quoted. The arguments on this question have taken a considerable range, and the contentions of the opposing parties are ably presented. The stipulation on which the case was tried agrees that that portion of plaintiff's land outside the city limits is used for pasture, and raising hay and corn. Of the part within the corporation limits, 23.2 acres is divided. Approximately the south 5 acres is devoted to lawn, unmowed grass, and residence; the remainder is in corn. The remaining 5 acres within the city limits is fenced, wooded grassland occasionally used for pasture. It is further stipulated that the acts performed by the plaintiff in keeping two horses in the .625 acre tract constitute a violation of the ordinance; presumably if it is valid and enforceable.

III. The plaintiff denies the power of the city to enact the ordinance in question. He says there is no showing that he was maintaining a nuisance per se; that nothing he has done in keeping two horses constitutes either a common law nuisance or a nuisance under our statutes. The defendants meet this by the assertion they have the power to declare nuisances, for the protection of the public health, welfare, and morals even though the matters so designated are not either common law or statutory nuisances. We do not find it necessary to decide this question.

It is elementary that municipalities have only those powers expressly given them, those which arise from fair implication, and those necessary to carry out powers expressly or impliedly granted. Stoner McCray System v. City of Des Moines, 247 Iowa 1313, 1322, 78 N.W.2d 843, 849, 58 A.L.R.2d 1304. It is also well settled that grants of power to municipalities are strictly construed against the authority claimed, and in case of reasonable doubt must be denied. City of Mason City v. Zerble, 250 Iowa 102, 93 N.W.2d 94, 98; Gritton v. City of Des Moines, 247 Iowa 326, 331, 73 N.W.2d 813, 816. The authority claimed here for the enactment of the questioned ordinance is first the general nuisance statutes of Iowa. But there is no evidence which would bring it within these statutes. We cannot take judicial notice that two horses, kept in a pasture .625 of an acre in extent, are injurious to health or offensive to the senses, or occasion other annoyances, without something further.

We are next referred to the statutes defining the general powers of municipalities, particularly Code Sections 366.1, 368.2 and 368.3, I.C.A. We quote Section 368.3: 'Nuisances They shall have power to abate, restrain, or prohibit any nuisance, public or private, and provide for the assessment of the cost thereof against the property. Said power shall include the authority to abate all nuisances as defined in section 657.1 and in section 657.2 or in any other statutory enumeration.' It is at this point that the defendants urge that cities and towns are given power to determine what are nuisances and whose abatement is a valid exercise of the police power. But we do not reach this question here as they have presented it. It must be conceded that if the legislature has clearly indicated that certain powers are not granted, the municipality cannot claim them. We find in...