Iowa-Illinois Gas & Elec. Co. v. City of Bettendorf, IOWA-ILLINOIS

• Decision Date: 07 February 1950
• Docket Number: No. 47564,IOWA-ILLINOIS,47564
• Citation: Iowa-Illinois Gas & Elec. Co. v. City of Bettendorf, 41 N.W.2d 1, 241 Iowa 358 (Iowa 1950)
• Parties: GAS & ELECTRIC CO. et al. v. CITY OF BETTENDORF et al.
• Court: Iowa Supreme Court

Page 1

41 N.W.2d 1

241 Iowa 358

IOWA-ILLINOIS GAS & ELECTRIC CO. et al. v.CITY OF BETTENDORF et al.

No. 47564.

Supreme Court of Iowa.

Feb. 7, 1950.

Lane & Waterman, Davenport, for appellants.

Albert J. Stafne Jr., Bettendorf, and Carl H. Lambach, Davenport, for appellees.

MANTZ, Justice.

On September 29, 1948, the city council of Bettendorf, Iowa, adopted a resolution that certain described real estate contiguous to said city be annexed thereto and provided that said proposition be submitted to the voters of the City of Bettendorf at the regular general election to be held on November 2, 1948, and provided that notice of said election, as prescribed by Section 362.28, subpar. 2, Code of 1946, I.C.A., be given.Said notice was given and at the general election held on said date the proposal carried.The vote was 1667 for and 170 against said proposal.After a canvass of the vote and a determination of the result the city took steps to carry out said annexation.

Certain taxpayers, plaintiffs herein, brought suit to enjoin said city and its officials from proceeding with said annexation, alleging that the proposition should have been submitted to the voters at a regular municipal election and therefore, the election was of no validity and conferred upon said city no power or authority to proceed further with such annexation.Plaintiffs prayed that said defendants and each of them be restrained and enjoined from further proceedings.The defendants denied the claims as made by plaintiffs and alleged that the city of Bettendorf, Iowa, through its officials had proceeded according to law as set forth in Section 362.28, Code of 1946, I.C.A., and prayed that plaintiffs' petition be dismissed.

The court made findings of fact and conclusions of law in which plaintiffs' petition was denied and dismissed and costs taxed to plaintiffs.This appeal followed.

I.The principal issue in the case involves the construction to be given to Section 362.28, Code of 1946, I.C.A., pertaining to an annexation of unplatted property to a city or town.Said section, so far as pertinent, reads as follows: 'Unplatted territory.Territory, not platted, adjoining any city or town may be annexed thereto and become a part thereof by proceeding as follows: 1.The council may provide by resolution adopted at least one month before any regular election, for the annexation of territory described therein.2.The proposition shall be submitted to the voters at said election in the following form: 'Shall the proposition to annex the territory described in the resolution adopted by the council of the city (or town) of ..... on the ... day of ..... be approved?'Notice of the submission of said proposition shall be given by publication in a newspaper of general circulation in said city or town once each week for four consecutive weeks preceding said election.'

Appellants' claim is that said section 362.28 did not apply and that the provisions of section 363.5 governed so far as the time of the submission of the proposed annexation was concerned.Thus it will be seen that the city claims that the question was properly submitted on November 2, 1948, as it was 'any regular election' as provided by said section, while appellants make denial thereof.Said claim by the appellants is the principal issue in this lawsuit.

In its essence, appellants' claim is that the proposed annexation should have been voted upon at the municipal or city election and that the law properly construed did not authorize such election as the November 2, 1948 election.

We quote the first proposition relied upon by appellants.'The regular election referred to in Section 362.28 is the regular municipal election prescribed by Section 363.5 of the 1946 Code.'

The part relied upon by appellants in said section 363.5 is as follows: 'Regular city and town elections shall be held on the last Monday in March, and elective officers shall be chosen biennially to succeed officers whose terms expire * * *.'

Above, we have set out from Section 362.28, the provision of the 1946 Code, I.C.A., followed by the city of Bettendorf in said election.'The council may provide by resolution adopted at least one month before any regular election, for the annexation of territory described therein.'(Italics supplied.)

We are unable to see any ambiguity or uncertainty in the above quoted paragraph and particularly in the words, 'any regular election'.Its application to the record facts presents no difficulty.It can hardly be said that there is any uncertainty to the normal meaning of such words.

II.Our court has had before it many times the rules to be applied in the construction of statutes.In the early case of Dubuque County v. Dubuque & Pacific RailroadCo., 4G. Greene 1, 2, this court in speaking of such rules said: 'In the construction of a statute the great object should be to discover the true intention of the legislature.The language of section 114 is precise and free from ambiguity; consequently no more can be necessary than to apply to the words their natural and ordinary sense.'

In the recent case, In re Adoption of Alley, 234 Iowa 931, 14 N.W.2d 742, 744, this court discussed the statute of Iowa with reference to adoption.The applicable part of Code, § 10501.3,Code 1939, provides: 'The consent of both parents shall be given to such adoption unless * * * the parents are not married to each other * * * or unless one or both of the parents have been deprived of the custody of the child by judicial procedure because of unfitness to be its guardian.If not married to each other, the parent having the care and providing for the wants of the child may give consent.'

In the opinion, this court said: 'As applied to this case, we find nothing of doubtful meaning in section 10501.3.It is only where a statute is ambiguous or of uncertain meaning that the courts are at liberty to apply rules of construction.Where a statute is plain and the meaning clear, courts are not permitted to search for its meaning beyond its express terms.We are not permitted to write into the statute words which are not there.'Citing Eysink v. Board of Supervisors, 229 Iowa 1240, 296 N.W. 376.See alsoIowa Public Service Co. v. Rhode, 230 Iowa 751, 298 N.W. 794;Am.Jur. 51, p. 526.

In the case of Palmer v. State Board of Assessment & Review, 226 Iowa 92, 283 N.W. 415, 416, this court had before it a taxation statute.Involved were statutory provisions relating to net income and sales taxes of Iowa.The statutes were set forth.Following this the court said: 'But is this statute subject to construction?One of the canons for statutory interpretation is that a statute is not to be read as though open to construction as a matter of course.Statutory construction may be properly invoked only when the legislative acts contain such ambiguities or obscurities that reasonable minds may disagree or be uncertain as to their meaning.Hahn v. Clayton County, 218 Iowa 543, 255 N.W. 695;Smith v. Sioux City Stock Yards Co., 219 Iowa 1142, 260 N.W. 531;Metropolitan Life Ins. Co. of New York City v. Reimer, 220 Iowa 1162, 263 N.W. 826.This rule is stated in 25 R.C.L.at pages 957, 958, as follows: 'Where the language of a statute is plain and unambiguous and its meaning clear and unmistakable, there is no room for construction, and the courts are not permitted to search for its meaning beyond the statute itself.* * * In such a case arguments * * * are worse than futile.* * * This is an axiomatic principle; it is embodied in the maxim Expressum facit cessare tacitum (a thing expressed puts an end to implication).'' See also50 Am.Jur.(statutes)Sections 223,226 Incl.SeeCosson v. Bradshaw, 160 Iowa 296, 141 N.W. 1062, Am.Cas.1915 D, 157.In the case of Long v. Northup, 225 Iowa 132, 279 N.W. 104, 109, 116 A.L.R. 1475, the Iowa court in speaking of the construction of statutes said: 'The intent of the Legislature, in the absence of previous construction of its enactments, must be determined both from the language used and the purpose of the legislation.'

Regarding the construction to be placed upon statutesthis court, in the case of Green v. Brinegar, 228 Iowa 477, 292 N.W. 229, 230, said: 'In construing a statutethis court has time and again said that the courts are required to interpret the language used by the legislature, fairly and sensibly in accordance with the plain meaning of the words used.'See alsoPeverill v. Department of Agriculture, 216 Iowa 534, 535, 245 N.W. 334.In the case of Meredith Publishing Company v. Iowa Employment Security Commission, 232 Iowa 666, 6 N.W.2d 614, speaking of the well-defined canons of statutory construction, quoted from the case of Jefferson County Farm Bureau v. Sherman, 208 Iowa 614, 226 N.W. 182, as follows: 'It is also a well-recognized rule of construction that legislative intention is to be deduced from the language used, and the language is to be construed according to its plain and ordinary meaning.'See alsoIowa Public Service Co. v. Rhode, supra.

We think that the language of this court in the case of Eysink v. Board of Supervisors, supra, is significant [229 Iowa 1240, 296 N.W. 378]: 'It must be remembered that it is only where a statute is of doubtful or uncertain meaning that courts are at liberty to apply rules of construction.Where the language of a statute is plain and unambiguous and its meaning clear, courts are not permitted to search for its meaning beyond the expressed terms of the statute.This court has no power to write into the statute words which are not there.These rules are of course elementary, and do not require the citation of authorities.'

In considering the words 'any regular election', the parties have devoted some consideration to the meaning of the term 'any'.

In the case of Winnebago County State Bank v. Hustel, 119 Iowa 115, 93 N.W. 70, the court had under consideration the word 'any' when used in a note...