Gritton v. City of Des Moines

• Decision Date: 13 December 1955
• Docket Number: No. 48847,48847
• Citation: 73 N.W.2d 813,247 Iowa 326
• Parties: Earl GRITTON, Appellant, v. CITY OF DES MOINES, Iowa, Joe Van Dreser, Mayor, and Arthur Johnson, City Clerk, Appellees, Philip E. Jester, Community Chest of Des Moines, and Hawley Welfare Foundation, Intervenors-Appellees.
• Court: Iowa Supreme Court

Page 813

73 N.W.2d 813

247 Iowa 326

Earl GRITTON, Appellant, v. CITY OF DES MOINES, Iowa, Joe Van Dreser, Mayor, and Arthur Johnson, City Clerk, Appellees Philip E. Jester, Community Chest of Des Moines, and Hawley Welfare Foundation, Intervenors-Appellees.

No. 48847.

Supreme Court of Iowa.

Dec. 13, 1955.

Don Seving, Des Moines, for appellant.

Harold H. Newcomb, Frank D. Bianco, and Don C. Swanson, Des Moines, for appellees.

Bannister, Carpenter, Ahlers & Cooney, Des Moines, for intervenors-appellees.

GARFIELD, Justice.

Plaintiff, a resident property owner and taxpayer, brought this action in equity to enjoin the city of Des Moines from conveying a tract of land owned by it to Hawley Welfare Foundation, a nonprofit corporation, as a site for a building it plans to erect. Hawley Welfare Foundation, Community Chest of Des Moines and Philip E. Jester, a resident taxpayer, intervened by joining with the city as permitted by rule 75, Rules of Civil Procedure, 58 I.C.A. Trial to the court was on stipulated facts. Plaintiff was denied relief and has appealed to us.

Plaintiff's basic contention is that the city is without statutory power to make the conveyance. He also contends that in any event it 'is not in the public interest' within the meaning of section 368.40, Code 1954, I.C.A. The district court held against plaintiff on both propositions.

The tract in question, near the east bank of the Des Moines river, is the west half of the block lying east of East First street, between East Locust street on the north and East Walnut on the south. The city acquired to between 1919 and 1923, inclusive, in six different parcels for a total consideration of $160,301. It was stipulated the present value of the land is not less than this amount. One of the six parcels was acquired by condemnation for $35,000, the others by voluntary conveyance. The city paid for the tract with proceeds of a bond issue in 1923. The bonds bore 4 1/2 per cent interest with maturity between 1926 and 1966. When and if the bonds are retired the city will have paid $391,756.50 in principal and interest for the tract in question.

The purpose for which the city acquired the tract is not shown except that it was for a 'Park Art Memorial.' It is admitted in argument it is now used as an automobile parking lot for employees of the city hall and federal court building and others. There were two alleys on the tract. The city vacated them about three weeks after this action was commenced. One vacated they is 280 feet in length along the east side of the tract. The other extends east and west 132 feet midway between Locust and Walnut streets. Both alleys are 16 feet wide.

The city was paid $5,000, apparently by Community Chest, for conveyance of the tract. The Chest's principal interest in the transaction appears to be that the building Hawley Foundation plans to build on the tract is to house the Chest as well as the Foundation. The $5,000 is to defray the estimated cost to the city of realigning First street which is not straight at the northwest corner of the tract.

The city council first authorized conveyance of the land on November 22, 1954. This action was commenced one month later. The council then caused notice to be published, pursuant to section 368.39, Code 1954, I.C.A., of the proposed conveyance. February 7, 1955, the council again authorized the conveyance 'with a reservation that if the property ever ceases to be used for public welfare or public community services it shall revert to' the city. There was a like reservation in the action taken by the city on November 22. February 10, 1955, plaintiff amended his petition herein by stating it should also be considered as an appeal from the action of the council on the ground it 'is not in the public interest.'

Hawley Welfare Foundation was incorporated in 1927. Its articles state its object 'is to establish a community trust for the City of Des Moines and State of Iowa; to invite and accumulate funds and properties to use in the service of mankind, assisting others to help themselves; to constructively bind and strengthen the ties of family life and to make more safe for this and coming generations the best traditions of the race; to do research work; to give assistance to welfare or other organizations, or to individuals without regard to race, religious or other affiliations.'

The will of Henry B. Hawley (executed one week after the articles of incorporation just mentioned) directs his executors to expend not less than $100,000 nor more than $250,000 to erect and equip a building to be known as 'Hawley Welfare Building' (the gift of Henry B. and Carrie M. Hawley) as soon as Hawley Welfare Foundation can acquire by gift from the city or other source a suitable site therefor. This is the building it is proposed to build on the tract acquired from the city.

Upon the trial the facts above mentioned were stipulated. It was also agreed that if Donald Anderson were called as a witness he would testify he was planning director of the city for the past three years; location of the proposed building on the site in question is in accordance with good city planning and with the plan for the Des Moines River Front Civic Center area which has been approved and adopted after many years of study (evidently by the City Plan Commission); the proposed site was selected and recommended above others; it is Anderson's opinion the city and its citizens will benefit by construction of the building, appearance of the River Front Civic Center area will be enhanced and beautified and other public property contiguous and adjacent will be increased in value.

It was also stipulated that if Arthur Kirk, prominent Des Moines realtor, were called as a witness he would express the same opinion, just referred to, as Anderson.

At the outset we stated plaintiff's two principal contentions. Defendants and intervenors argue that since the objects of Hawley Foundation are public and charitable the conveyance from the city results in merely a transfer from one public use to another which they say Code sections 368.39 and 368.40, I.C.A., heretofore mentioned, enacted by the 54th General Assembly in 1951, authorize. Section 368.39, so far as pertinent here, provides:

'They [cities and towns] shall have power to dispose of the title or interest of such corporation in any real estate, or any lien thereon, or sheriff's certificate therefor, owned or held by it, including any street or portion thereof vacated or discontinued, however acquired or held, in such manner and upon such terms as the council shall direct. * * * Notice of any proposal to dispose of real property under the provisions of this section shall be given by publication, once each week for two consecutive weeks in the manner provided by section 618.14. * * *'

The first sentence of 368.39 is almost identical with section 403.12, Code 1950, I.C.A., and a like provision in earlier codes as early as that of 1897.

Section 368.40, an entirely new enactment, states: 'Whenever the council of any municipal corporation enters into an agreement for the sale, lease, or disposal by other means of any municipal property, any elector of such municipal corporation shall have the right to appeal from the action of the council to the district court, within thirty days of the final action thereon by the council, on the ground that such agreement is not in the public interest. All such agreements shall be voidable pending the decision of the court.'

Defendants and intervenors also contend--and, as stated, plaintiff denies--the conveyance from the city is in the public interest.

I. It is fundamental that municipal corporations are wholly creatures of the state legislature. They have no inherent power to do what was done here. They possess and can exercise only the powers (1) expressly granted by the legislature, (2) necessarily or fairly implied in or incident to the powers expressly granted, and (3) those indispensably essential--not merely convenient--to the declared objects and purposes of the municipality. Brooks v. Incorporated Town of Brooklyn, 146 Iowa 136, 141, 124 N.W. 868, 26 L.R.A., N.S., 425; Van Eaton v. Town of Sidney, 211 Iowa 986, 989, 231 N.W. 475, 476, 71 A.L.R. 820, and citations; Keokuk Waterworks Co. v. City of Keokuk, 224 Iowa 718, 731, 277 N.W. 291; Iowa Electric Co. v. Town of Cascade, 227 Iowa 480, 483, 288 N.W. 633, 634, 129 A.L.R. 758; Cowin v City of Waterloo, 237 Iowa 202, 210, 21 N.W.2d 705, 709, 163 A.L.R. 1327; 2 McQuillin, Municipal Corporations, 3d Ed., section 10.09, page 593; 62 C.J.S., Municipal Corporations, § 117a; 37 Am.Jur., Municipal Corporations, section 112.

Earlier decisions stating the rule substantially as we have expressed it are Heins v. Lincoln, 102 Iowa 69, 77, 71 N.W. 189, and cases cited therein.

The powers conferred upon municipalities are to be strictly construed and when there is uncertainty or reasonable doubt as to the existence of power it will be denied. City of Onawa v. Mona Motor Oil Co., 217 Iowa 1042, 1045, 252 N.W. 544; Van Eaton v. Town of Sidney, supra, and citations at page 990 of 211 Iowa, at page 477 of 231 N.W.; Brockman v. City of Creston, 79 Iowa 587, 589-591, 44 N.W. 822; 2 McQuillin, Mun.Corps., 3d Ed., sections 10.18, 10.19, pages 621-625; 62 C.J.S., Municipal Corporations, § 119a; 37 Am.Jur., Mun.Corps. section 113. See also Huff v. City of Des Moines, 244 Iowa 89, 92, 56 N.W.2d 54, 56; Peterson v. Town of Panora, 222 Iowa 1236, 1240, 271 N.W. 317; Ebert v. Short, 199 Iowa 147, 151, 201 N.W. 793.

II. Code sections 368.39 and 368.40, I.C.A. are the statutes appellees claim confer upon the city the power to do what is attempted here. No other statute seems to be relied upon and none has been called to our attention. We have quoted the pertinent part of 368.39 and all of 368.40. Only 368.39 purports to be a grant of power. In our opinion these statutes do not confer upon the city the...