Griffin v. Messenger

• Decision Date: 18 May 1901
• Parties: GRIFFIN v. MESSENGER, COUNTY TREASURER, ET AL.
• Court: Iowa Supreme Court

114 Iowa 99

86 N.W. 219

GRIFFIN

v.MESSENGER, COUNTY TREASURER, ET AL.

Supreme Court of Iowa.

May 18, 1901.

Appeal from district court, Clay county; F. H. Helsell, Judge.

Action in equity to restrain the sale of lots for taxes levied for the construction of a sewer. Trial and a decree for the plaintiff. The bank appeals. Affirmed.Cornwall & Martin, for appellant.

J. E. Steele and Carr & Parker, for appellee.

SHERWIN, J.

The lots upon which the special assessment was levied are in Spencer, a city of the second class. The ordinance providing for the construction of the sewer was adopted without reading the same on three different days, as required by section 489, Code 1873. At the time of its adoption five of the six councilmen and the mayor were present. Upon a motion to suspend the rule requiring its reading on three different days, and to pass the ordinance forthwith, the five councilmen present voted in the affirmative, and the rule was declared suspended and the ordinance was adopted. The law in force in 1892, at the time the ordinance in question was adopted, explicitly provided that the mayor of a city of the second class should constitute a member of the city council. Section 531, Code 1873. In Spencer, where there were six councilmen elected, the council consisted of seven members, because of this express statute making the mayor a member thereof. As only five members of the council voted for a suspension of the rule requiring the ordinance to be read on three different days, the appellee contends that the vote was insufficient to suspend the rule, and that the ordinance is therefore void, while, on the other hand, the appellant maintains that the mayor is not to be considered a member of the council when it comes to a vote of this kind.

The mayor was by law made a constituent part of the city council. How it is possible to eliminate him in determining the number of persons composing the council, we are unable to see. It is true, he had a vote only when there was a tie; but this restriction upon his power to vote rendered him none the less a component part of the council, under the law. The language of the statute is clear and unambiguous where it declares that such ordinances shall be read on “three different days unless three-fourths of the council shall dispense with the rule.” It does not say three-fourths of the council, excluding the mayor, nor three-fourths of the council ordinarily voting, and to give it the...