Hall v. City of Cedar Rapids

• Decision Date: 20 December 1901
• Citation: 88 N.W. 448,115 Iowa 199
• Parties: HALL ET AL. v. CITY OF CEDAR RAPIDS ET AL.
• Court: Iowa Supreme Court

115 Iowa 199

88 N.W. 448

HALL ET AL.

v.CITY OF CEDAR RAPIDS ET AL.

Supreme Court of Iowa.

Dec. 20, 1901.

Appeal from district court, Linn county; W. N. Treichler, Judge.

The city of Cedar Rapids is a city acting under a special charter. In March, 1900, its council passed an ordinance granting to John H. Brown and his assigns a franchise to construct, maintain, and operate a system of waterworks in said city. The franchise, when accepted, was to continue for the term of 25 years. It was assigned in May, 1900, to the City Water Company of Cedar Rapids, Iowa, by whom it was accepted in June of the same year. When the franchise was applied for by Brown, an ordinance was drawn, and passed to its first reading, which contained the following provision, as section 12 thereof: “Sec. 12. The city of Cedar Rapids reserves the right to own, control and operate the water plant system constructed by the said John H. Brown, his successors, assigns, executors, or administrators, at any time that the electors of the city of Cedar Rapids shall authorize the city council to assume such control, ownership and operation. But in the event of the said city of Cedar Rapids assuming the said ownership and operation, all revenues from private consumers shall belong to the city; the grantee herein shall reserve only and have the right to reserve all hydrant rental to the amount of $38,000 per annum for a period not to exceed twenty three years from the time this ordinance and rental contract becomes effective, at the end of which time the said water plant system, under the exercise of this option, shall be the property absolutely of the said city of Cedar Rapids, free and clear of any lien, claim, or incumbrance of any kind thereon, owned or held by the said grantee, his successors, assigns, executors or administrators and held by others.” Thereafter the following notice was published: “Notice is hereby given that John H. Brown and his assigns have made application to the city council of the city of Cedar Rapids for a franchise and permission and authority to construct, maintain, and operate a system of waterworks within the streets, avenues, alleys, roads, parks, and public places within the limits of the city of Cedar Rapids, Iowa, and for the purpose of placing, replacing, and taking up and connecting water mains, hydrants, pipes, and valves for the service of water to the city of Cedar Rapids and its inhabitants. City of Cedar Rapids, by John M. Redmond, Mayor. J. D. Blain, Recorder.” When the ordinance was finally passed, section 12, above referred to, had been eliminated. In other respects the ordinance was passed as first introduced. Section 9 of the ordinance provides, among other things, that the city of Cedar Rapids agrees to rent, “and does hereby rent, from the grantee, for the period of twenty three years, from and after the completion and acceptance of the water works, * * * four hundred hydrants at an annual rental of thirty eight thousand dollars, to be paid by the city treasurer * * * in semi-annual payments on the first days of April and October of each year.” Said section also contains this farther provision: “In consideration of the above rental the grantee shall furnish water without additional charge or cost to the city for all city buildings and to all parks now or hereafter owned by the city, and to all churches, parsonages and public schools within the city.” Section 14 provides for the annual levy of not to exceed a five-mill tax to meet this hydrant rent, and makes such levy irrepealable. It also provides for the payment of the hydrant rental from a special tax for such purpose, if deemed best by the city. The plaintiffs are resident taxpayers of Cedar Rapids, and bring this action in equity to restrain the city from proceeding under the ordinance in question, on the ground that it is unlawful and void. The pleadings are lengthy, and no good end can be accomplished by stating more than is necessary to a proper understanding of the question we shall discuss, and this we will do as we proceed. There was a decree below finding the ordinance void, and granting the relief prayed. The defendant appeals. Affirmed.Wood & Oakley, J. H. Jamison, and John N. Hughes, for appellants.

Chas. A. Clark & Son and Wm. G. Clark, for appellees.

SHERWIN, J.

To enable a better and a clearer understanding of the question which we are called upon to decide in this case, we will give a short, general synopsis of events in connection with the passage of the ordinance attacked. There is another “Richmond”who has occupied the field, at least partially, for many years. The water and service of the old waterworks company were not entirely satisfactory to all of the citizens, and not at all so to the city council as a body. Ways and means were sought whereby the supply of water for the inhabitants of the beautiful city on the Cedar could be made purer and better. The question of municipal ownership was agitated, and some means sought through which this highly desirable end might be attained. Before the ordinance in question was offered, it was conceived by at least some members of the council that a way might be blazed whereby municipal ownership of a system of waterworks could in time be brought about. That this proposition cannot be denied is evidenced by section 12 of the ordinance, which appears in the statement preceding this opinion. After the notice of the...