Iowa-Nebraska Light & Power Co. v. City of Villisca

• Decision Date: 14 May 1935
• Docket Number: 42809.
• Citation: 261 N.W. 423,220 Iowa 238
• Parties: IOWA-NEBRASKA LIGHT & POWER CO. et al. v. CITY OF VILLISCA et al.
• Court: Iowa Supreme Court

261 N.W. 423

220 Iowa 238

IOWA-NEBRASKA LIGHT & POWER CO. et al. v. CITY OF VILLISCA et al.

No. 42809.

Supreme Court of Iowa.

May 14, 1935

Appeal from District Court, Montgomery County; Earl Peters, Judge.

Action in equity to enjoin the city of Villisca, Iowa, and the Electric Equipment Company from carrying out a contract for the construction of an electric light plant under the Simmer Law. The lower court refused an injunction and entered a decree upholding the contract.

Reversed and remanded.

R. J Organ, of Omaha, Neb., and Cook & Cook, of Glenwood, for appellants.

Stipp Perry, Bannister & Starzinger, of Des Moines, and Harold Bickford, of Villisca, for appellees.

KINTZINGER, Justice.

In 1932 the city of Villisca duly voted in favor of constructing a municipal electric light plant in that city, at a maximum cost of $150,000, under the provisions of chapter 312 of the Code of 1931 (section 6127 et seq.), and sections 6134-d1 to 6134-d7, inc., known as the Simmer Law. Pursuant to that election, the city advertised for bids to be submitted on proposed plans and specifications on May 15, 1934, as required by sections 6134-d4, 6134-d5. As a result of the advertisement, several bids were submitted at that time. After a consideration of such bids, they were all found to exceed the maximum cost authorized by the election.

Thereupon the city council by resolution amended the plans and specifications by eliminating a substantial part of the " proposed plans and specifications" ; and without readvertising for new bids, on the amended plans, the city on June 6, 1934, let the contract to the Electric Equipment Company for the sum of $139,000. This action is brought to enjoin the carrying out of said contract on various grounds hereinafter considered. The lower court sustained a motion dismissing several counts of the petition, and entered a decree on the balance of the petition in favor of defendants. Plaintiffs appeal on grounds hereinafter considered.

It was the purpose of the city to construct and establish an electric light plant pursuant to chapter 312 of the Code and in accordance with the provisions of sections 6134-d1 to 6134-d7, inc., known as the Simmer Law, providing for payment out of the earnings of the plant, without creating any general obligations on the part of the city. Sections 6134-d1 to 6134-d7, inc., were adopted as chapter 158, Acts 44th Gen. Assem., and are a part of chapter 312 of the Code of 1931, relating to the acquisition of electric and other plants by municipalities.

I.

The first question raised by appellants is that chapter 158, Acts 44th Gen. Assem., is unconstitutional, as being in violation of section 29, art. 3, of the Iowa Constitution, which provides as follows: " Every act shall embrace but one subject, and matters properly connected therewith; which subject shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title."

An examination of the development of this provision shows that originally (Const. 1846, art. 3, § 26) it read: " Every law shall embrace but one subject, which shall be expressed in the title." This provision was soon changed so that it now reads: " Every act shall embrace but one subject, and matters properly connected therewith; which subject shall be expressed in the title." It is obvious that the present provision containing the italicized words shows an intention on the part of the framers of the Constitution to give it a liberal construction, so as to embrace all matters reasonably connected with the title and which are not incongruous thereto. Such has been the uniform holdings of this court from an early date. State ex rel. Weir v. County Judge, 2 Iowa, 280, loc. cit. 282 (1856); Cook v. Marshall County, 119 Iowa, 384, 93 N.W. 372, 104 Am.St.Rep. 283; State v. Hutchinson Ice Cream Co., 168 Iowa, 1, 147 N.W. 195, L.R.A. 1917D, 198; State v. Gibson, 189 Iowa, 1212, 174 N.W. 34; Rural Independent District v. McCracken, 212 Iowa, 1114, 233 N.W. 147; Beaner v. Lucas, 138 Iowa, 215, 216, 112 N.W. 772; Porter v. Thomson, 22 Iowa, 391; State v. Fairmont Cr. Co., 153 Iowa, 702, 133 N.W. 895, 42 L.R.A.(N.S.) 821.In State ex rel. Weir v. County Judge, 2 Iowa, 280, loc. cit. 282, this court said: " The intent of this provision * * * was to prevent the union in the same act of incongruous matter, and of objects having no connection, no relation. And with this it was designed to prevent surprise in legislation, by having matter of one nature embraced in a bill whose title expressed another. It is manifest, however, that there must be some limit to the division of matter into separate bills or acts. It cannot be held with reason that each thought or step toward the accomplishment of an end or object, should be embodied in a separate act. * * * It is important to bear in mind that to declare an act unconstitutional and void, is the exercise of the highest power of the court, and is not to be resorted to, unless it become necessary. * * * And it is the duty of the courts to give such a construction to an act, if possible, as will avoid this necessity, and uphold the law."

In State v. Gibson, 189 Iowa, 1212, loc. cit. 1220, 174 N.W. 34, 37, we said: " The subject of the bill need not be specifically and exactly expressed in the title. * * * The prohibition is against incongruity. The title must not contain matter utterly incongruous to the provisions of the body of the statute, and that is the limitation of the prohibition. * * * That only is prohibited which by no fair intendment can be considered as germane. * * * No matter how broadly the general subject is expressed in the title, the act is valid unless the statute contains matter utterly incongruous to that general subject. * * * It does not matter that the title does not reveal means and methods if those means and methods are reasonably adapted to secure the general objects set forth in the title, and the objects of the statute. * * * The Constitution is not violated if all the provisions relate to the one subject indicated in the title and are parts of it, or incidental to it, or reasonably connected with it, or in some reasonable sense auxiliary to the subject of the statute." (Italics ours.)

The rules hereinabove referred to have been so frequently declared by this court, so unanimously adhered to, and the reasons therefore so fully expressed that we deem it unnecessary to consider them further. It is the settled law that all matters reasonably connected with the subject named in the title and not incongruous thereto are properly included in the bill. If therefore the matters contained in this bill are germane, and reasonably connected with the subject named in the title and not incongruous thereto, it must be sustained (upheld).

The title of the act in question is as follows: " An Act to amend section sixty-one hundred thirty-four (6134) of chapter three hundred twelve (312) of the code of Iowa, 1927, relating to public utility plants, and to provide additional methods of paying for said plants, improvements, or extensions, * * * and * * * for publication of notice * * * to enter into such contracts for the purchase of plants; * * * to provide for the submission and consideration of bids, plans, specifications and contracts for plants * * * or equipment and the furnishing of electrical energy, heat, water and/or gas; to provide for fixing the terms, rates, and interest in said contracts; to provide for limiting of liability of municipalities thereon in such contracts." The subjects embraced in the above-entitled acts are contained in sections 6134-d1 to 6134-d7, inc., and, for the purpose of determining if they are reasonably connected or related thereto, we set them out as follows:

" 6134-d1. Contract authorized . They shall have power to pay for any such plant, improvement or extension thereof out of the past earnings of the plant and/or out of the future earnings and/or may contract for the payment of all or part of the cost of such plant, improvement or extension out of the future earnings from such plant, and may secure such contract by the pledge of the property purchased and the net earnings of the plant.

6134-d2. Nature and requirements of contract . Such contract shall not constitute a general obligation or be payable in any manner by taxation. Such contract shall specify the maximum rate that may be charged the consumers, including the municipality, and the city shall not increase or fix any rate beyond such maximum. Under no circumstances shall the city be in any manner liable by reason of the failure of the net earnings being sufficient for the payments provided in the contract. Such contract shall also specify the rate of interest to be charged.

6134-d3. Interpretative clause-election requirement . Nothing contained in the last two preceding sections shall be construed as authorizing an establishment of a plant without an election as required by section 6131. And such proposition when submitted to an election shall state the maximum amount which may be expended for the establishment, construction, or acquisition of such plant.

6134-d4. Notice of proposed contract-publication . Before any municipality shall enter into any such contract as provided in section 6134-d1, for the establishment of a plant, or for the extension or improvement of an existing plant, to cost five thousand dollars or more, the governing body proposing to make such contract shall give thirty days' notice of its intention to adopt proposed plans and specifications and proposed form of contract therefor, by publication once each week for two consecutive weeks in some...