Headid v. Rodman
| Decision Date | 24 September 1970 |
| Docket Number | No. 54067,54067 |
| Citation | 179 N.W.2d 767 |
| Parties | Mahlon HEADID, Appellant, v. Mark R. RODMAN, individually, and as Building Inspector of the City of SiouxCity, Iowa, William Hogan, individually, and as Plumbing Inspector of the Cityof Sioux City, Iowa, and the City of Sioux City, Iowa, Appellees. |
| Court | Iowa Supreme Court |
O'Brien & Galvin, Donald E. O'Brien, Sioux City, for appellant.
Robert C. Clem, Sioux City, for appellees.
Plaintiff brought this action in equity seeking a writ of mandamus directing the City of Sioux City through its appropriate officials to issue a permit to disconnect the home of a third party from his private stub sewer line. The trial court refused to order the writ on three grounds. (1) The ordinance under which the writ was sought did not call for a ministerial act but gave discretion to the officials who had not acted arbitrarily or capriciously in refusing to issue the permit. (2) The rights of a third party, not a party to the lawsuit, would be adversely affected. (3) The third party had acquired an easement over plaintiff's premises for the use of the sewer. It also questioned whether plaintiff came into equity with clean hands, but did not decide the case on this ground. Plaintiff appealed from the judgment entered.
In the early 1920's Harriett L. Foster owned lots four and five in block 23, Morningside Addition to Sioux City. A store building (5308 Morningside Avenue) was located on lot five. A house (5308 1/2 Morningside Avenue was located behind the store building and extended a short distance onto lot four. Mrs. Foster built another home (5306 Morningside Avenue) on lot four and connected the sewer and water to the lines serving 5308 and 5308 1/2.
Plaintiff purchased 5308 and 5308 1/2 from Mrs. Foster in 1946. The record does not show when Mrs. Foster sold 5306 or when the present owners acquired title.
According to plaintiff, in about 1967 the city at the instigation of the owner of 5306 shut off his water supply from the common pipe and compelled him to put in a separate connection with the water main located across Morningside Avenue which ran in front of these lots. Plaintiff then hired a plumber to disconnect the sewer line from 5306 from the sewer line on his property without obtaining a permit to do so.
The city officials issued a permit for the owner of 5306 to lay a sewer line on his own property to the parking and to connect with the sewer line serving 5308 and 5308 1/2 on the city property rather than requiring him to cross Morningside Avenue and make a separate connection with the sewer main. There was evidence it would have cost $2000 to cut through the paved portion of the 80 foot street to lay the sewer line.
Plaintiff then applied for a permit to disconnect this line from the line coming from his property. Permission was refused on three separate occasions. This action in mandamus resulted.
I. Mandamus is the proper remedy to compel the performance of a ministerial act. Section 661.1, Code of Iowa; Independent School District of Danbury v. Christiansen (1951), 242 Iowa 963, 969, 49 N.W.2d 263, 267.
If the tribunal or person has discretion in the matter, mandamus can compel it to act but cannot control such discretion. Section 661.2, Code of Iowa; Hougen v. George (1963), 254 Iowa 1055, 1057--1058, 120 N.W.2d 497, 498; Iowa Mutual Tornado Ins. Ass'n. v. Timmons (1960), 252 Iowa 163, 169, 105 N.W.2d 209, 212; Independent School District of Danbury v. Christiansen, supra.
However, if the tribunal or person acts arbitrarily and capriciously, mandamus will issue to correct such abuse of its discretion. Gibson v. Winterset Community School District (1966), 258 Iowa 440, 444--445, 138 N.W.2d 112, 115.
A ministerial act is one which is to be performed upon a given state of facts, in a prescribed manner, in observance of the mandate of legal authority and does not require the person or board charged with the duty of performing the act to exercise his or its own judgment. Gibson v. Winterset Community School District, supra; Independent School District of Danbury v. Christiansen, supra; First National Bank of Remsen v. Hayes (1919), 186 Iowa 892, 902, 171 N.W. 715, 718.
('Discretion may be defined, when applied to public functionaries, as the power or right conferred upon them by law of acting officially under certain circumstances, according to the dictates of their own judgment and conscience, and not controlled by the judgment or conscience of others.' First National Bank of Remsen v. Hayes, supra; approved, Independent School District of Danbury v. Christiansen, supra and citations.
II. Plaintiff claims the issuance of the permit is a mandatory ministerial duty the performance of which may be compelled by a writ of mandamus. He relies on section 92.3--2(1) of Sioux City's Plumbing Ordinance which provides:
'Every building intended for human habitation or occupancy on premises abutting a street * * * in which there is a public sewer which one hundred fifty (150) feet of such premises shall have a connection with such sewer and if possible, a separate connection.' and section 92.2--2(6) which states: 'If the word 'shall' is used, the meaning is the act to be performed is mandatory.'
These sections require all dwellings on premises within 150 feet of a public sewer to be connected to such sewer. The matter of a separate connection, which is the issue involved here, presents a different problem. The use of the phrase 'and if possible' injects a judgment decision into the ordinance. The responsible public functionaries must decide whether it is 'possible' for a particular property to have a separate connection. As they exercise their own judgment in making the decision, the act of issuing a permit becomes discretionary.
Plaintiff calls our attention to the testimony of the plumbing inspector who denied the permit to plaintiff. He testified it was possible to connect 5306 into the public sewer across Morningside Avenue. If 'possible' as used in this section means a separate connection is required in all instances where it is not physically impossible to make a separate connection, a serious question would be raised as to the arbitrary and capricious nature of the refusal of the permit. However, we believe the phrase 'if possible' is intended as a synonym for practicable or feasible. It is difficult to conceive of a situation in which it would be possible to connect a property abutting a street with a public sewer by a joint line and be physically impossible to connect it separately. It seems more reasonable to interpret the phrase as permitting reasonable exceptions to the separate connection provision.
Under this construction of the ordinance, we cannot say the issuing authority abused its discretion in refusing to issue a permit to remove 5306 from the joint sewer line. The fact that these properties had used the same line for over forty years, the placing of the cost of constructing a separate line on a third party, the inconvenience of having a main street closed and the undesirability of having the pavement cut and the land under it excavated are all matters which may have entered into the practicability and feasibility of requiring a separate connection and could have influenced the decision to refuse the permit.
The city through its officials might well have required a separate connection under these circumstances. This does not mean, however, that plaintiff had the right to compel them to do so.
III. Even if we were to hold the ordinance required each property to have a separate sewer connection unless it was a physical impossibility and the issuing authority abused its discretion in refusing to issue the permit, it would not mean plaintiff was automatically entitled...
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