Ewing v. City of Webster City

• Decision Date: 15 October 1897
• Citation: 103 Iowa 226,72 N.W. 511
• Parties: EWING v. CITY OF WEBSTER CITY ET AL.
• Court: Iowa Supreme Court

103 Iowa 226

72 N.W. 511

EWING

v.CITY OF WEBSTER CITY ET AL.

Supreme Court of Iowa.

Oct. 15, 1897.

Appeal from district court, Hamilton county; B. P. Birdsall, Judge.

Action in equity to restrain the defendants from enforcing an ordinance of the city of Webster City. A temporary injunction was issued, but on subsequent hearing on the pleadings and affidavits was dissolved, and from that order the plaintiff appeals. Affirmed.Geo. Wambach, J. L. Kamrar, and Wambach & Richard, for appellant.

C. A. Weaver and D. C. Chase, for appellees.

ROBINSON, J.

In the latter part of the year 1895 the plaintiff commenced buying and cribbing corn in the city of Webster City. In August, 1889, an ordinance had been enacted which provided for establishing at the city market place city scales suitable for weighing commodities of various kinds. The ordinance also provided for a city weigher, and fixed the fees to be paid for weighing. Sections 6 and 7 of the ordinance are as follows:

“Sec. 6. It shall be unlawful for any person, firm, or corporation to buy or sell by weight, within the city of Webster City, Iowa, any stock or any grain, hay, straw, stone, coal or other commodity, commonly sold by weight, and weighed on wagon or stock scales, where the quantity exceeds 600 pounds, without procuring a draft of such stock or commodity to be made on the city scales. This section shall not be construed so as to prohibit the buying or selling of stock by the head, or commodity by the bulk, or otherwise than by weight. Nor shall it apply to persons living on farms, within the corporation, so as to prevent their buying produce for feeding purposes thereon, outside of the platted portion of the city. The buying or selling of any commodity embraced in the foregoing provisions, and weighed on other scales than the city scales, shall be presumptive evidence that the same is bought and sold by weight.

Sec. 7. Any person found guilty of a violation of this ordinance shall be fined a sum of not less than five dollars, or more than twenty-five dollars, and stand committed until such fine is paid.”

On the 12th day of December, 1895, the plaintiff was arrested, and fined five dollars, and required to pay the costs of the prosecution, for buying corn not weighed on the city scales; and on the next day he was again arrested, and required to pay a like fine and costs for a similar offense. From each judgment the plaintiff in this case appealed to the district court, and the appeals are now pending in that court, and undetermined. The distance from the city scales to the cribs of the plaintiff is about one-half mile, and on account of that distance sellers of corn refuse to sell to the plaintiff unless the corn can be weighed near the cribs. The location of the cribs is the nearest one to the scales which the plaintiff can procure, for the reason that all eligible locations which are nearer are already occupied by other dealers. The defendants are the city and its mayor and marshal. They threaten to prosecute the plaintiff and his customers if they do not weigh the corn sold on the city scales, and in consequence of the threats and prosecutions the business of the plaintiff has been greatly diminished. He states that the facilities for weighing furnished by the city are inadequate, and that the ordinance to which we have referred is unreasonable and void. He asks that the defendants be restrained from enforcing the ordinance, and from further prosecuting the plaintiff, or any of his customers, under the ordinance; and as one ground for the relief asked states that it will avoid a multiplicity of suits. A temporary injunction was issued to restrain the defendants from enforcing the ordinance as prayed. The answer of the defendants contains a general denial and pleads various matters in justification of the ordinance. A motion to dissolve the temporary injunction was filed by the defendants. The district court dissolved it on the ground “that the remedy by injunction will not lie; that the court has no power to determine the validity of the ordinance in question in a suit in equity, but that the plaintiff must be relegated to the suits brought for the enforcement of the ordinance, wherein, if the ordinance is void, it will be a complete defense to such prosecutions.” Webster City contains more than 5,000 inhabitants, and is incorporated as a city of the second class. The defendants claim that the ordinance in question was authorized by section 456 of the Code of 1873, which provides, among other things, that incorporated cities and towns have power to establish and regulate markets, to provide for the measuring or weighing of hay, coal, or any other article of sale; and by section 482, which authorizes such corporations to enforce obedience to ordinances by fine or imprisonment. These sections authorized the city to adopt an ordinance of the general scope and purpose of that in question; but an ordinance so adopted, to be valid, must be reasonable. In Davis v. Town of Anita, 73 Iowa, 325, 35 N. W. 244, an ordinance similar to that in question was considered, and held to be authorized, and this court held further, in effect, that for the town of Anita it appeared to be reasonable, and that an injunction to restrain its enforcement should not have been granted. But the power of a court of equity to grant an injunction to restrain prosecutions under such ordinances does not appear to have been considered. A court of equity will not interfere by injunction where the party desiring it has a plain, speedy, and adequate remedy in the ordinary course of the law. Thomas v. Manufacturing Co., 76 Iowa, 738, 39 N. W. 874;City of Council Bluffs v. Stewart...