Ermels v. City of Webster City

• Decision Date: 20 September 1955
• Docket Number: No. 48746,48746
• Citation: 246 Iowa 1305,71 N.W.2d 911
• Parties: Peter ERMELS and Barney Ermels, doing business as Ermels Brothers, a Partnership, Plaintiffs-Appellants, v. CITY OF WEBSTER CITY, IOWA, Defendant-Appellee.
• Court: Iowa Supreme Court

Page 911

71 N.W.2d 911

246 Iowa 1305

Peter ERMELS and Barney Ermels, doing business as Ermels Brothers, a Partnership, Plaintiffs-Appellants, v. CITY OF WEBSTER CITY, IOWA, Defendant-Appellee.

No. 48746.

Supreme Court of Iowa.

Sept. 20, 1955.

Prince & Guthrie, Webster City, Sterling Alexander, Des Moines, for appellants.

Whitley M. Hemingway, Stewart H. M. Lund, Webster City, for appellee.

HAYS, Justice.

Acting under Chapter 390, Code of 1954, I.C.A.; the Defendant, City of Webster City, Iowa, has ordered condemnation of certain real estate owned by Plaintiffs. In this proceeding Plaintiffs seek to enjoin the Defendant from so doing. Plaintiffs' petition was dismissed by the trial court and they have appealed.

The question raised goes to the constitutionality of the Chapter and is approached from two angles. (1) As an abstract legal proposition, and (2) As presented by the instant situation.

I. As an abstract question:

Section 390.1, Code of 1954, I.C.A., provides in part as follows: 'Cities and towns shall have additional power and authority to purchase, lease or otherwise acquire and to improve, * * * maintain and operate parking lots or other off-street parking areas for the parking of vehicles, but before such authority is exercised the city council shall hold a public hearing to determine whether or not public convenience and necessity will be served by the establishment of such facilities. * * *' Section 390.3, Code of 1954, states: 'Any such city or town shall have the power to provide for the condemnation of, * * *, enter upon and take any lands for such purposes * * *.' In Connolly v. Des Moines & Central Ry. Co., Iowa, 68 N.W.2d 320, 325, we said: 'When the government's power of eminent domain is delegated to municipalities, agencies, and railroads, its exercise by the latter is the same as if the state is acting to condemn.'

Upon the question of what is or is not 'a public use' within the purview of eminent domain, this court has spoken many times. In Bankhead v. Brown, 25 Iowa 540, we said: 'But if a public use be declared by the legislature the courts will hold the use public unless it manifestly appears by the provisions of the act, that they can have no tendency to advance and promote such public use.' In Reter v. Davenport, R. I. & N. W. Ry. Co., 243 Iowa 1112, 54 N.W.2d 863, 867, 35 A.L.R.2d 1306, it is said: "It is for that body (the legislature) to determine in the first instance what are the public uses to subserve which a grant of power (to condemn) may properly be made. That this may not be done arbitrarily, and having no proper regard for the character of the conditions to which application is to be made, or the results to follow the use, may readily be conceded. * * * It is to be said, however, that the doctrine common to statutory construction, from the viewpoint of the Constitution, is applicable here * * * that interference on the part of the courts will not be warranted, except there be presented a clear, plain, and palpable case of transgression." See also: 18 Am.Jur. Eminent Domain, Sec. 46; 29 C.J.S., Eminent Domain, § 30; Annotation 8 A.L.R.2d 373, 375-376; 37 Am.Jur., p. 734, Sec. 120.

By Sections 390.1 and 390.3, Code of 1954, I.C.A., the legislature has declared, not in so many words but equally as effective, that off-street parking facilities inure to the public use and benefit. Certainly it does not manifestly appear by the provisions of the act, that it can have no tendency to advocate and promote such public use. Applying the rule that 'where constitutional questions are raised, all reasonable intendments must be indulged in in favor of the validity of the statute', Central States Theatre Corp. v. Sar, 245 Iowa 1254, 66 N.W.2d 450; we have no difficulty in finding the statutes in question to be within the constitutional power and authority of the legislature to enact.

While this court has not passed upon the specific question of 'off-street parking' constituting a public use, other jurisdictions have; and, universally, it has been so declared. McSorley v. Fitzgerald, 359 Pa. 264, 59 A.2d 142; City of Trenton v. Lenzner, 16 N.J. 465, 109 A.2d 409; Cleveland v. City of Detroit, 324 Mich. 527, 37 N.W.2d 625, 11 A.L.R.2d 171; City of Whittier v. Dixon, 24 Cal.2d 664, 151 P.2d 5; Poole v. City of Kankakee, 406 Ill. 521, 94 N.E.2d 46; Wayne Village President v. Wayne Village Clerk, 323 Mich. 592, 36 N.W.2d 157, 8 A.L.R.2d 357; Gate City Garage, Inc., v. City of Jacksonville, Fla. 66 So.2d 653. We agree with the rule announced in the foregoing cited authorities even conceding, as claimed by Appellants, a resulting special benefit to private individuals. See: Rindge Co. v. Los Angeles County, 262 U.S. 700, 43 S.Ct. 689, 67 L.Ed. 1186; City of Richmond v. Dervishian, 190 Va. 398, 57 S.E.2d 120; Broadhead v. City & County of Denver, 126 Colo. 119, 247 P.2d 140; Reter v. Davenport, R. I. & N. W. Ry. Co., 243 Iowa 1112, 54 N.W.2d 863, supra.

II. Appellants next proposition concerns the following portion of Section 390.1, supra: '* * * but before such authority is exercised the city...