Hanson v. Wm. A. Hunter Elec. Light Co.

• Decision Date: 01 June 1891
• Citation: 48 N.W. 1005,86 Iowa 722
• Parties: HANSON v. WM. A. HUNTER ELECTRIC LIGHT CO. ET AL.
• Court: Iowa Supreme Court

86 Iowa 722

48 N.W. 1005

HANSON

v.WM. A. HUNTER ELECTRIC LIGHT CO. ET AL.

Supreme Court of Iowa.

June 1, 1891.

Appeal from district court, Benton county; L. G. KINNE, Judge.

Plaintiff, a resident tax-payer of the defendant city, brings this action to declare revised ordinance No. 21 of said city, and two written contracts made thereunder, between the city and William A. Hunter, null and void, and to enjoin the allowing or paying any bills for the rent of the electric lights out of the general fund of the city under said ordinance and contracts. Defendants demurred upon the grounds: “(1) Because said petition does not state facts sufficient to constitute a cause of action; (2) because plaintiff does not appear by said petition to be entitled to bring or maintain this suit; (3) because the facts set forth in said petition do not entitle the plaintiff to the relief demanded, or to any relief whatever.” This demurrer was sustained, and, plaintiff electing to stand on his petition, judgment was entered dismissing the same. Plaintiff appeals.J. J. Mosnat, for appellant.

Geo. C. Scrimgeour and Thomas H. Wilner, for appellees.

GIVEN, J.

1. We first inquire as to the plaintiff's right to maintain this action. It is contended that the petition fails to show any injury to him. It shows that he is a tax-payer on property in the defendant city; that under the ordinance and contracts set out the city is bound to pay rentals for electric street lights out of the general fund, instead of by special levy on the property benefited. Searle v. Abraham, 73 Iowa, 507, 35 N. W. Rep. 612, is cited in support of the demurrer. In that case a tax-payer sought to enjoin the city from making a second contract for lighting the streets, on the ground that it had a contract with another company in full force. Defendant denied that there was any other contract in force. It was held that it was only the party to the other contract that could assert any rights under it, and until so asserted the tax-payer was not injured. In this case rights are asserted under the ordinance and contract complained of. This ordinance and contract must stand or fall together. If valid, their enforcement would be a direct injury to plaintiff, to the extent that his taxes would be increased thereby. Dodge v. City of Council Bluffs, 57 Iowa, 560, 10 N. W. Rep. 886, is also cited. In that case the ordinance provided that, if the special tax authorized by law was insufficient to pay the water rentals, the deficit should be paid out of the current annual revenues. The court says: “It is not certain there will be any deficit to be made good out of the general revenue. This action, so far as this point is concerned, is brought upon a mere contingency. Courts of equity lend themselves to prevent injuries which are imminent, not merely possible.” No such contingency arises in this case, as the rentals are directly and exclusively payable out of the general fund, and the petition shows that such rentals have accrued, and, unless enjoined, will be so paid. Gas Co. v. City of Des Moines, 44 Iowa, 505, is also cited. In that case the plaintiff company sought to enjoin the city from passing an ordinance conferring a franchise upon another gas company, on the grounds that an exclusive privilege had been given to the plaintiff. It was held that, as the city had power to legislate on that subject, the court could not interfere to prevent enactments. We think the petition shows such injury to plaintiff as entitles him to maintain this action, if the grounds thereof are well founded.

2. We next inquire whether the matters alleged show the ordinance to be void, either as containing more than one subject, as provided in section 489 of the Code, or as being passed without being approved by a majority of the voters of the city at a general or special election, as provided in section 471 of the Code. The ordinance grants to William A. Hunter, his successors and assigns, the right to place poles and wires in the streets and alleys, “to transmit electricity for electric lights and power, and the free use thereof, with the right to conduct in pipes underground, to the electric light plant, the water from the artesian well now flowing at the intersection of Beach and Washington streets, of said city.” It is contended by appellee that the provision as to conducting water in pipes is a different subject from that in regard to transmitting electricity, and Dempsey v. City of Burlington, 66 Iowa, 688, 24 N. W. Rep. 508, is relied upon. In that case the ordinance provided that the vacation of an alley, and released the interest of the city therein to one Higbee. The court, in referring to section 489, says: “But we think it does not forbid the enactment in a single ordinance of all the legislation which may be necessary for the accomplishment of a single object. The different provisions necessary for the accomplishment of the object intended in that case would all relate necessarily to the same subject.” The single object of this ordinance is to supply electricity for the use of the city and its inhabitants, and the privilege granted as to water is merely an incident thereto, and is therefore part of the object intended, namely, the supplying of electricity. If the privilege was for...