Erickson v. City of Cedar Rapids
| Decision Date | 15 November 1921 |
| Docket Number | 32703 |
| Citation | 185 N.W. 46,193 Iowa 109 |
| Parties | FREDERICK ERICKSON et al., Appellees, v. CITY OF CEDAR RAPIDS et al., Appellees; RIVER FRONT IMPROVEMENT COMMISSION et al., Appellants |
| Court | Iowa Supreme Court |
REHEARING DENIED FEBRUARY 17, 1922.
Appeal from Linn District Court.--MILO P. SMITH, Judge.
SUIT in equity, to cancel a contract which provided for the construction of a concrete wall in the channel of the Cedar River at Cedar Rapids, Iowa, and other improvements. Interveners and defendants, except the city, prayed enforcement of the contract. Facts are fully set forth in the opinion. Decree was entered canceling the contract, from which this appeal is prosecuted.
Affirmed.
Deacon Good, Sargent & Spangler, Redmond & Stewart, and Trewin Simmons & Trewin, for appellants.
L. D. Dennis and O. N. Elliott, for appellees.
I.
The contract involved, which appellees sought to have canceled and which appellants asked to have carried out, provides for: (a) Settlement of a division line between public and private property for a distance of three and one-half blocks on the easterly side of the Cedar River; (b) the construction of a perpendicular concrete wall in the channel of the river, and the filling in of a considerable portion of the channel; (c) the amount to be paid by the property owners toward the improvement.
The city of Cedar Rapids since 1908 had been operating under the commission plan of government. The Cedar River runs through the city from a northwesterly to a southeasterly direction, dividing the city into what are known as the east side and the west side, and flows through the business section of the city. Previous to adoption by the city of the commission plan of government, there had been appointed, under the provisions of Chapter 210 of the Acts of the Twenty-ninth General Assembly, now Chapter 9-A, Title V, of the Code Supplement, 1913, a river-front-improvement commission, and under the provisions of that law (Section 879-e), this commission was authorized to "provide for and protect, by secure walls or banks, a channel adequate to carry flood waters of a volume equal to all reasonable expectations, based on past experience, and the area drained by such stream, according to expert authority," etc. The law further provided (Section 879-f) that, before commencing such work, the plans, profiles, and specifications should be submitted to and approved by the state executive council.
This commission did no work other than of a preliminary character, and there was no real attempt at river-front improvement until some time after the adoption by the city of the commission form of government.
By Chapter 66 of the Acts of the Thirty-third General Assembly, effective April 13, 1909 (Section 1056-a48, Code Supplement, 1913), it was provided that cities operating under the commission plan of government
Thereafter, on May 2, 1910, the city council appointed a board of three commissioners, and on the 31st day of January, 1913, passed an ordinance conferring on said river-front commission "all those powers and duties which were and are conferred upon the river-front-improvement commission by Chapter 210, Acts of the Twenty-ninth General Assembly."
Following the taking effect of Chapter 66 of the Acts of the Thirty-third General Assembly, and prior to the election thereunder of a river-front-improvement commission, and prior to the passage of the ordinance conferring on the river-front commission the powers granted by that act of the city council, the river-front-improvement commission, which had been elected under the original law of the twenty-ninth general assembly, and which continued in office without re-election, caused channel lines to be platted at the place of the wall in controversy.
The first improvement made by the commission was in 1914, when there was constructed a concrete perpendicular wall on the west side of the river, between First and Third Avenues, connecting the west abutments of First, Second, and Third Avenue bridges. This improvement on the west side having been made, the commission next turned its attention to the east side of the river, to the improvement in controversy, and negotiated with the property owners on a proposition to fill a part of the existing river channel for the erection of a driveway, the negotiations finally resulting in the contract involved in this action. The city, through its councilmen, approved and signed the contract.
On the 23d day of May, 1916, Frederick Erickson et al., appellees, instituted this action, and asked that the contract be canceled, and that all parties to the contract be restrained from proceeding with its enforcement, on the ground that the proposed construction of the east wall did not leave an adequate waterway for the flood waters of the river, and was, therefore, dangerous to the lives and property of the citizens of the city.
The river-front- improvement commission and the city, answering the petition, denied the material allegations, and the case remained pending for some time.
On March 26, 1917, there occurred a flood in the Cedar River at Cedar Rapids. The council, after inspecting the conditions during this flood and observing its height with reference to the bridges, came to the unanimous conclusion that it would be dangerous to construct the wall provided for in the contract. The council then advised the river-front-improvement commission and the property owners, parties to the contract, of its changed mind and position, and requested the river-front-improvement commission to seek to obtain from the property owners a modification of the contract, so as to permit the river wall to be placed so as to conform to the abutments of the bridges, and to preserve so much of the waterway as had been left, from the encroachment of the property owners. The river-front-improvement commission refused to modify its plans, and would not consent to any modification or alteration of the contract. Thereupon, the city council passed an ordinance repealing the former ordinance, by which it had granted to the river-front-improvement commission the powers vested in it by Chapter 66 of the Acts of the Thirty-third General Assembly, and in the new ordinance limited the powers of the commission to certain minor duties not connected with the matters involved in this case.
On June 19, 1917, W. L. Cherry et al., appellants, taxpayers, intervened in the action, taking substantially the same position as the river-front-improvement commission, and prayed a decree for specific enforcement of the contract, and that the river-front-improvement commission be commanded to carry out the contract, and restraining the city council from performing any acts which would interfere with the carrying out of the contract.
As before mentioned, after the flood in March, 1917, the city council, being convinced that its former position was wrong, changed its position, and joined with the original plaintiffs, Erickson et al., appellees, in seeking to have the contract canceled. In August, 1917, the city filed a cross-petition, making James B. Nelson et al., parties to the contract, defendants, and prayed that the contract be canceled.
The issues as finally made up arranged the original plaintiffs, Erickson et al., and the city, an original defendant, on one side, asking the cancellation of the contract, and on the other side, the river-front-improvement commission, James B. Nelson et al., parties to the contract, and W. L. Cherry et al., taxpayers, interveners, asking for specific enforcement of the contract. The court found for plaintiff and the city, and entered a decree setting aside the contract, and enjoining the carrying out of the terms of the contract. From this decision the river-front-improvement commission and W. L. Cherry et al. separately appealed. James B. Nelson et al., made defendants in the cross-petition filed by the city, have not prosecuted an appeal to this court. The river-front-improvement commission and W. L. Cherry et al., appellants, served notice of their appeal on James B. Nelson et al., and by such service they claim that said parties are appellants in this court. Appellees claim that said parties are not appellants. This question will be considered later in this opinion.
II. The main law question is presented by appellees' taking the position that the river-front commissioners, at the time of the trial, had no legal power or authority, under the law or ordinances of the city, and were not entitled to the relief asked, and by appellants' contending that the wall was to be constructed on a channel line previously adopted by the river-front-improvement commission and approved by the city council and the state executive council; and that the line as thus fixed was conclusive; that the adoption of this channel line, in this manner, constituted an act by the executive department of the state, involving the exercise of discretion; and that said discretion and judgment...
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