Hutchins v. City of Des Moines

• Decision Date: 06 May 1916
• Docket Number: No. 30762.,30762.
• Parties: HUTCHINS v. CITY OF DES MOINES ET AL. (MILLS, INTERVENER).
• Court: Iowa Supreme Court

176 Iowa 189

157 N.W. 881

HUTCHINS

v.CITY OF DES MOINES ET AL. (MILLS, INTERVENER).

No. 30762.

Supreme Court of Iowa.

May 6, 1916.

Appeal from District Court, Polk County; Hubert Utterback, Judge.

On June 19, 1911, there was submitted to the voters of Des Moines at a special election this proposition:

Shall the city of Des Moines purchase, establish, erect, , maintain, and operate waterworks with all necessary reservoirs, mains, filters, streams, trenches, pipes, drains, machines, apparatus, and other requirements of waterworks plant or system?”

3,330 votes were cast for the proposition and 442 against. The city on October 2d following adopted the resolution that:

The city of Des Moines do now proceed to acquire by y condemnation, as provided by chapter 45 of the Acts of the 33d General Assembly as amended by the Acts of the 34th General Assembly, the said existing works of the water plant now being operated and owned by said Des Moines Waterworks Company.”

The city, through its attorneys, filed with the clerk of the Supreme Court an application for the appointment of three district judges to act as a court of condemnation, and on the 21st day of October, that court designated Hon. Chas. E. Ransier, then a district judge of the Tenth judicial district, Hon. R. M. Wright, a district judge of the Eleventh judicial district, and Hon. F. R. Gaynor, then a judge of the Fourth judicial district, and required that they meet at the county seat of Polk county within 10 days thereafter. The said judges met accordingly, and, having proceeded to determine the value of said waterworks property, fixed a value thereof, as of April 1, 1912, at $2,302,522. An appeal was taken from such award to the district court of Polk county, and the proceedings were thereafter removed by the Des Moines Waterworks Company to the District Court of the United States for the Southern District of Iowa. That court fixed the value of the plant at the same amount as the award, and authorized the city of Des Moines to acquire the same by paying the amount thereof to the clerk of said district court of the United States, but reserving to the Des Moines Waterworks Company the right to require the city to pay for improvements made subsequent to April 1, 1912. A municipal election was held March 30, 1914, at which a proposition to purchase the plant and also a proposition to issue bonds aggregating $2,400,000 for the purpose of paying for the waterworks plant was submitted to the people. 11,261 votes were cast for and 9,147 against the purchase, thus carrying the first proposition; but only 7,516 votes were cast in favor of the proposition to issue bonds, being less than required, and 4,978 against. On June 1st following a special election was had, at which the proposition to issue bonds aggregating $2,400,000 for the purpose of borrowing money out of which to pay for the waterworks was submitted to the people, and 10,667 votes were cast, of which 6,725 were for the proposition and 3,942 against it. On November 3d thereafter another special election was held to vote upon the issuance of bonds; 7,659 votes being cast in favor of the proposition, and 5,885 votes against.

Thereafter, November 18, 1914, the city council directed the legal department of the city to prepare the necessary resolution for the issuance of said bonds, on the theory that the proposition had been adopted by the voters, and the city is proceeding with the intention to issue said bonds unless restrained. Both the plaintiff and intervener allege that the vote of November 3d was not large enough by several thousand to comply with the requirement of chapter 118, Acts of the 33d General Assembly, and that said bonds, if issued, would be illegal, void, and the proposed action by the city council result in great and unnecessary expense to the city, which will be lost to the taxpayers, and further that if permitted to issue the bonds the said city will pay the amount of the award and take over the property if not restrained. Thus far the allegations of the petition and the petition of intervention are substantially the same. In addition thereto the intervener alleged that chapter 45 of the Acts of the 33d General Assembly, as amended by chapter 35 of the Acts of the 34th General Assembly, are unconstitutional and void.

Demurrers to both the petition and petition of intervener were sustained, and these were dismissed. The plaintiff and intervener appeal. Reversed.R. P. Thompson, of Des Moines, for appellant Hutchins.

Parker, Parrish & Miller, of Des Moines, for appellant Mills.

H. W. Byers, Eskil C. Carlson, and Earl M. Steer, all of Des Moines, for appellees.

LADD, J.

The city of Des Moines was authorized to acquire or construct a waterworks system (section 720, Code Supp. 1913), and, as it might do under section 721 of said Code Supp. 1913, submitted the question of whether it should purchase, establish, erect, operate, and maintain such system to the voters of the city June 19, 1911. Though a relatively small number voted, a majority favored purchasing, etc., and thereafter the city council proceeded “to acquire by condemnation” the existing system of the Des Moines Water Company. Section 722, Code Supp. 1913. An appropriate resolution was adopted October 2, 1911, and October 15th, following, application was made to the Supreme Court for the appointment of three district judges to act as a court of condemnation (section 722a, Code Supp.), and district judges were designated accordingly October 21st. Said judges met as required by this statute last cited and fixed the damages to said Des Moines Water Company, consequent on the appropriation of its property, at $2,302,522. On March 30, 1914, the day of the municipal election of officers, the city council submitted to the qualified voters whether the city take over the plant and whether it issue bonds in the amount of $2,400,000 on which to borrow money to pay therefor. The proposition to purchase carried, but that to issue bonds failed, because of the affirmative vote not being 1 larger than the majority of the votes cast at the last preceding municipal election, as exacted by section 1306e, Code Supp. A special election was called for June 1, 1914, at which the proposition to issue bonds was again submitted, but for like reason failed; the total vote cast being 10,667. On November 3, 1914, another special election was called, at which 7,659 voted for the proposition and 5,885 against. Our first inquiry is whether the affirmative vote was sufficient to authorize the issuance of bonds to provide funds to pay the damages assessed for the taking of the plant. Prior to the enactment of chapter 118 of the Acts of the 35th General Assembly a majority or two-thirds of those voting only was exacted as a condition precedent to the issuance of bonds for such purpose. See chapter 43, Acts 30th G. A.; chapter 49, Acts 31st G. A.; chapter 83, Acts 33d G. A.

The statute in the form passed by the 35th General Assembly (Acts 35th Gen. Assem. c. 118) reads:

“If a majority, of all the electors voting at such election, provided said affirmative vote be as large as a majority of all the votes cast at the last preceding municipal election, vote in favor of the issuance of such bonds, the council of such city or town shall issue the same as provided by section seven hundred twenty-six of the Code and make provision for the payment of the bonds and interest thereon as provided by title five of the Code.”

[1] The change doubtless was due to the difficulty in procuring a full vote at a special election and the desirability of having the opinion of a large percentage of the electorate expressed on the economic proposition presented. To accomplish this the vote at the “last preceding municipal election” was fixed as the criterion. Does this mean regular election at which officers are chosen, or may it include special elections called for the purpose of authorizing the issuance of bonds? If the vote at special elections is to be regarded as the criterion, as well as that at the regular election of officers, then it is changeable, not only though successive special elections as these may be called, but in the personnel of the voters, for only males may exercise the right of suffrage in the election of officers, while women may participate in an election to determine whether bonds shall issue. Again, this would afford those who favor the adoption of the proposition submitted the opportunity to abstain from voting, thereby reducing the total vote, in order that at the succeeding election a smaller number may force the proposition through and thereby defeat the very purpose of amending the statute. It would permit the city council to defeat the object of the statute by calling successive special elections, and thereby fix the criterion by a special election by which to measure the vote cast at that subsequently called.

Section 1089 of the Code declares that:

“The term ‘general election,’ as used in this chapter, shall apply to any election held for the choice of national, state, judicial, district, county or township officers; that of ‘city election’ shall apply to any municipal election held in a city or town; and that of ‘special election,’ shall apply to any other election held for any purpose authorized or required by law.”

This section is preceded by one declaring that the provisions of this chapter shall apply to all elections known to the laws of the state except school elections. Section 1088, Code. The term “general election” is limited to the choice of certain officers other than those of cities; but the term “city election,” though limited to elections held in the city or town, is broad enough to include any municipal election held therein, and really is synonymous therewith. A “special election” is neither a city nor general election,for by the express language of this statute the term applies to “any other election”; that is, other than...