Harding v. Bd. of Sup'rs of Osceola Cnty.

• Decision Date: 20 June 1931
• Docket Number: No. 40971.,40971.
• Citation: 237 N.W. 625,213 Iowa 560
• Parties: HARDING v. BOARD OF SUP'RS OF OSCEOLA COUNTY ET AL. (RANSOM ET AL., INTERVENERS).
• Court: Iowa Supreme Court

213 Iowa 560

237 N.W. 625

HARDING

v.BOARD OF SUP'RS OF OSCEOLA COUNTY ET AL. (RANSOM ET AL., INTERVENERS).

No. 40971.

Supreme Court of Iowa.

June 20, 1931.

Appeal from District Court, Osceola County; O. S. Thomas, Judge.

Action for injunction to enjoin the issuance, by the officers of Osceola county, of primary road bonds. Upon a hearing as to whether a temporary injunction should be granted, the trial court denied said requested relief. Plaintiff appeals.

Modified.

KINDIG, EVANS, MORLING, and GRIMM, JJ., dissenting.W. L. Harding, of Des Moines, and R. A. Oliver, of Sioux City, for appellant.

George E. Gill, of Sibley, for appellees.

E. H. Koopman and I. R. Meltzer, both of Sibley, for intervening appellees.

WAGNER, J.

The plaintiff, in his petition, alleges that he is a resident, citizen, real estate owner and taxpayer of Osceola county, and has been for many years last past; that he brings this action for and on behalf of himself and numerous other residents, citizens, real estate owners, and taxpayers of said county, who have like interest in said cause. The defendants constitute the board of supervisors, the county auditor, and county treasurer of said county. The plaintiff asks that the defendant-officers be enjoined from issuing primary road bonds in the sum of $800,000 authorized by the voters of Osceola county at the general election held on November 4, 1930. The grounds upon which he asks that an injunction be issued are: (1) That subsequent to the election the state highway commission materially changed and relocated primary road No. 9, and that the defendants are wrongfully proposing to use said bond issue to pave said relocated road, and that said action would constitute a wrongful diversion of said funds; and (2) that said bond issue is illegal and void because of the inadequacy of the provisions for paying the interest and principal of said bonds. The defendants deny the allegations which the plaintiff alleges entitles him to an injunction, and certain parties have intervened, joining the defendants in the action. The plaintiff alleges in his petition, and the defendants and interveners admit in their answer, that the primary road system of Osceola county was established under chapter 237 of the Acts of the 38th Gen. Assem.; that up to and including the time of the matters complained of the following roads constituted the primary road system of Osceola county, to wit:

“Primary Road No. 21, crossing said County from south to north about eleven miles east of the west line of said County.

Primary Road No. 9, crossing said County from east to west as follows, to-wit: Beginning on the east line of said County at the intersection of the south line of Section Twenty-four (24) of Fairview Township; thence west two miles; thence south one mile on the east line of Section Twenty-seven (27) of Fairview Township; thence west five miles to the northeast corner of Section Thirty-five (35), in Horton Township; thence south one mile along the east line of said Section; thence west one-half mile along the south line of said Section; thence south through the town of Ocheyedan two miles to a point on the center of the north line of Section Fourteen (14) of Ocheyedan Township; thence west about sixteen and one half miles on the section line through Sibley, the county seat of said County, to the west line of Osceola County.”

No. 9 hereinbefore described, ran through the towns of Harris, Ocheyedan, and Sibley. The fair inferences from the record are that in the summer of 1930 the state highway commission relocated, or contemplated relocating, that portion of No. 9 beginning on the east line of the county at the southeast corner of section 24, in Fairview township, and terminating at the southeast corner of section 35, in Horton township, by substituting therefor the following: Beginning at the southeast corner of section 36, in Fairview township, and running straight west to the southeast corner of section 35, in Horton township, and by putting in a stub or spur leading thereto from the town of Harris, and that the grading, or a major portion thereof, upon the substituted portion of said road, was completed before the general election in 1930. It will be observed that, at the time of said election, no change as to designation or location of the remainder of No. 9 had been made. At the general election in November, 1930, there was submitted to the voters of said county the following proposition:

“Shall the Board of Supervisors be authorized to issue bonds from year to year, in the aggregate amount not exceeding eight hundred thousand dollars, for the purpose of providing the funds for draining, grading and hard surfacing the primary roads of the county, and to levy a tax on all property in the county from year to year not exceeding five mills in any one year, for the payment of the principal and interest of said bonds, provided, however, that the annual allotments to the county of the primary road fund shall be used to pay interest and retire said bonds as they mature, and only such portion of said tax shall be levied, from year to year as may be necessary to meet any deficiency, if any, between the amount of the interest and principal of the bonds and the said allotments from the primary road funds?” (Writer's Italics.)

Said proposition carried by a vote of 1,400 in favor of, to 905 against, the proposition. Shortly after the election, surveys were started by the commission on proposed primary 33, leading from the south side of the county, through Ashton to Sibley, and also upon what we shall term new No. 9, leading from the center of the south line of section 35, in Horton township, thence west to the east side of the Chicago, St. Paul, Minneapolis & Omaha Railroad, thence southwesterly along the east side of said railroad and substantially parallel therewith to the city of Sibley, and by putting in a spur leading from said east and west road to the town of Ocheyedan. On February 3 the highway commission sent for signature to the board of supervisors a proposed contract, by which it was proposed to pave primary road No. 9 from the Dickinson county line on the east to the Lyon county line on the west, “a distance of approximately 26 miles.” This contract was not signed by the board of supervisors. On February 18 a resolution was passed by the highway commission and communicated to the board of supervisors, requesting the issuance of bonds to pay for the paving on primary road No. 9 from Sibley to the Dickinson county line. On March 2 a proposed new contract was forwarded by the state highway commission to the board of supervisors for signature. In this latter contract, the highway commission, for the first time, disclosed its purpose to use the proceeds of the bonds to pave what we have hereinbefore termed new No. 9 between Ocheyedan and Sibley, two miles north of where No. 9 was located at the time of the election. Said contract contains the following provision: “Whereas the Iowa State Highway Commission now proposes to pave Primary Road No. 9 from a point on the Osceola-Dickinson County line, near the S. E. Corner of Section 36, Township 100 North, Range 39 West, thence west, substantially following the section line to the east side of the C. St. P. M. & O. R. R., near the south quarter corner of Section 31, Township 100 North, Range 41 West, thence southwesterly along the east side of said railroad and substantially parallel thereto to the north corporation line of the City of Sibley, a distance of approximately 20 miles.”

It appears that the board at first refused to sign this proposed contract, but, after mandamus proceedings had been begun--or threatened--the board did sign the same. The contract calls for the issuance of bonds in the amount of $600,000, for said contemplated improvement. A stay order has been issued by this court to maintain the status quo until the determination of this appeal.

The situation as to the primary roads of the county is shown by the accompanying map, No. 21 and what we shall term old No. 9 are shown by the black lines and designated respectivelyby the figures 21 and 9. What is now contemplated by the state highway commission as No. 9 is designated by the lines in red.

IMAGE

As we proceed, it must be borne in mind, as hereinbefore stated, that it is inferable from the record that that portion of the red line extending from the Dickinson county line to a point on the south line in the center of section 35, north of the town of Ocheyedan, had been substituted for old No. 9, leading from the southeast corner of section 24, in Fairview township, to said point. It will thus be observed that new No. 9, which the state highway commission now proposes to pave, contains approximately twelve miles which in no event constituted a part of the primary roads of said county at the time of the election. Ten miles of said contemplated new primary road was a highway at that time, and lies two miles north of old No. 9, the primary road at the time of the election. The approximately two miles lying on the east side of the railroad to the north of Sibley is a highway established by the state highway commission.

The appellant contends that the voters gave their authority for the issuance of bonds for the purpose of providing funds for the improvement of only such roads as were the primary roads at the time of the election, and that to permit the use of the money thus to be raised by the issuance of bonds for the improvement of the highway mentioned in the aforesaid contract, and which highway was not designated as, and did not constitute a part of, the primary roads at that time, would constitute a wrongful diversion of the funds. The appellees contend that the state highway commission are authorized by the law to relocate and make a new designation of the primary roads and to designate any substituted road as a primary road, even after the election, and that therefore there has not...