Groenendyk v. Fowler

• Decision Date: 25 October 1927
• Docket Number: 38245
• Citation: 215 N.W. 718,204 Iowa 598
• Parties: E. GROENENDYKE, Appellant, v. WALTER H. FOWLER et al., Appellees
• Court: Iowa Supreme Court

215 N.W. 718

204 Iowa 598

E. GROENENDYKE, Appellant, v. WALTER H. FOWLER et al., Appellees

No. 38245

Supreme Court of Iowa, Des Moines

October 25, 1927

Appeal from Marion District Court.--J. H. APPLEGATE, Judge.

An action in equity, to enjoin appellee W. H. Fowler from obstructing the streets, alleys, avenues, and other public places of Pella, Iowa, with certain telephone poles and lines, under claim of franchise which, it is alleged, was void because the proper petition for the election therefor was not obtained and filed. Motion to strike plaintiff's pleading was sustained, and so this appeal was taken.

Affirmed.

Charles W. Lyon and Havner, Flick & Powers, for appellant.

H. E De Reus and Dick C. Van Zante, for Fowler, appellee.

George G. Gaass, for City of Pella, appellee.

KINDIG J. EVANS, C. J., and STEVENS, FAVILLE, and WAGNER, JJ concur.

OPINION

KINDIG, J.

bye concession of the parties, the scope of this litigation is confined to one proposition. All others are expressly eliminated. The question is, Do the words "property owners," as used in Section 5905 of the Code of 1924, include "owner" of personalty, as well as real estate? If the answer is affirmative, then the action of the district court is right. On the other hand, should it be negative, a reversal must result. Said reference reads as follows:

"No franchise shall be granted, renewed, or extended by any city or town for the use of its streets, highways, avenues, alleys, or public places, for any of the purposes named in the preceding section [telephone wires, poles, and other supports thereof], unless a majority of the legal electors voting thereon vote in favor of the same at a general, city or town, or special election. The council may order the question of the granting, renewal, or extension of any such franchise so submitted; or the mayor shall submit said question to such vote upon the petition of twenty-five property owners of each voting precinct in a city, or fifty property owners in any town."

It is admitted that Pella is a city, under the statutory provisions. There were four voting precincts therein at the time the election was held to grant appellee Walter H. Fowler such right to operate a telephone system within said municipality. Preliminary to the vote on said submission, there was presented, for the consideration of the mayor, a petition containing the names of 113 persons, purporting to be property owners within the four "voting precincts." At least 25 of said individuals were from each said subdivision. Only ten signers are claimed not to be "property owners," as required by said section. However, excluding these, there would result a deficiency in at least two of said districts.

Basis for such disqualification is placed upon the fact that this minority group each owned "personal," but no "real," property. Upon presentation to said city official, it was held that the signatures were sufficient, and accordingly, the election was called, vote taken, and franchise granted. Appellant insists that said officer, in truth, had no petition before him, and was without jurisdiction in the premises, due to the fact that, in the instances named, holders not of "real," but of "personal," property were permitted to sign. His theory is placed upon the premise that: First, the burden of poles and wires, as well as the expense thereof, would be upon the land; second, apparent curtailment shown by removal of "ward," as contained in Section 776 of the Code of 1897, and the substitution therefor of "precinct" in said Section 5905; third, enactments concerning abutting property contained elsewhere in the Code; and fourth, the reasoning in the case of Stason v. City of Albia, 150 Iowa 207, 129 N.W. 809, having to do with severing territory from a city.

These suggestions have their plausibility; but, after careful deliberation, we are inclined to the view that they are not indications of the meaning expressed by the law before us. Ambiguity does not exist, and the Code provision is simple, plain, and clear. Construction, under such circumstances, is not necessary. Fry v. Fry, 125 Iowa 424, 101 N.W. 144. Grimes v. Northwestern Legion of Honor, 97 Iowa 315, 64 N.W. 806, as a guide for our action, states:

"The words used are unambiguous; are broad, comprehensive, and significant; and the rule commending consideration of the context is subject to the qualification that, if the meaning of the words can be found in the section itself, it ought to be there sought without recourse to anything beyond."

Controlling the required interpretation is the word "property." Dictionaries, as well as courts, have given this designation a well established and definite meaning, respectively, to wit: First, "The exclusive right to possess, enjoy, and dispose of, a thing * * *. In a narrower sense property implies exclusive ownership * * * of things, as where a man owns a piece of land or a horse; in the broader sense, property includes, in the modern legal systems, practically all valuable rights * * * included various incorporeal rights, as patents, copyrights, rights of action; * * * an estate, whether in lands, goods, money, or intangible rights, such as a copyright, patent rights, etc. * * *" (Webster's New International Dictionary); and second, "The term 'property' is said to be nomen generalissimum, and to include everything which is the subject of ownership, corporeal or incorporeal, tangible or intangible, visible or invisible, real or personal; everything that has an exchangeable value, or which goes to make up one's wealth or...