O'Keefe v. Hopp

• Decision Date: 21 January 1930
• Docket Number: No. 40011.,40011.
• Citation: 228 N.W. 625,210 Iowa 398
• Parties: O'KEEFE ET AL. v. HOPP ET AL.
• Court: Iowa Supreme Court

210 Iowa 398

228 N.W. 625

O'KEEFE ET AL.

v.HOPP ET AL.

No. 40011.

Supreme Court of Iowa.

Jan. 21, 1930.

Appeal from District Court, Pottawattamie County; W. C. Ratcliff, Judge.

This was an action in mandamus brought by the plaintiffs for the purpose of compelling the defendants, County Supervisors, to submit to the Pottawattamie county voters, at the general election in 1928, the proposition whether a bridge should be built across the Missouri river at Council Bluffs. The district court allowed the relief. From this decision, the defendants appeal. Reversed.

Evans, Faville, De Graff, and Wagner, JJ., dissenting.

*626John P. Organ and John J. Hess, both of Council Bluffs, A. L. Preston, of Avoca, and Charles Roe, of Carson, for appellants.

D. E. Stuart, Lynn S. Alberti, and Kimball, Peterson, Smith & Peterson, all of Council Bluffs, for appellees.

KINDIG, J.

Nebraska is located immediately west of Iowa and the boundary line between the two states is the Missouri river. Pottawattamie county is situated within and on the extreme western side of Iowa. Its western boundary is the Missouri river. The county seat is Council Bluffs. Across the Missouri river to the west, and directly opposite that city, is Omaha, Neb. Connecting the two cities at the time involved in this litigation was a tollbridge owned and operated by private capital. Being desirous of constructing, maintaining, and using a free bridge across said river, on August 27, 1928, certain citizens and electors of Pottawattamie county presented to the appellant board of supervisors a petition asking that a special election be called for the purpose, as before indicated, of submitting to the voters of that county the following proposition:

“Shall the County of Pottawattamie, in the State of Iowa, be authorized to construct and maintain a foot and wagon bridge extending from Council Bluffs in the County of Pottawattamie, in the State of Iowa, across the boundary line river commonly known as the Missouri River, to the city of Omaha, in the County of Douglas, State of Nebraska, at a cost not to exceed $400,000 to said county of Pottawattamie, State of Iowa?”

Upon the receipt of the petition, the appellants finally denied its sufficiency, after having continued the cause from time to time. Feeling that the appellants erred in this regard, the appellees, who were among the petitioners aforesaid, commenced this action in mandamus. After a trial in the district court, that tribunal allowed the writ, and accordingly the election was called and vote taken on the question set forth in the petition. As the result of the election, the proposition carried. Insisting, however, that the petition was entirely insufficient to authorize the election, the board of supervisors on this appeal ask for a reversal of the district court's action in the premises.

Before entering upon a discussion of the specific points involved, it is essential to consider the material statutes, appellees' petition before the supervisors, and the findings made thereon by the board. That will be done in the order named.

In the 1927 Code, there are the following applicable sections:

“4678. Ten per cent. of the legal voters, as shown by the returns of the last general election, of any county bordering upon a stream of water which forms the boundary line of this state, may petition the board of supervisors to submit to the voters the question whether such county shall be authorized to construct and maintain (the italics are ours) a foot and wagon bridge extending from such county across such boundary line river. Said petition shall state the amount to be expended for said purpose (the italics are ours).”

“4679. The board shall submit such question at the first general election occurring not less than sixty days after the filing of said petition.”

Section 4680 provides for notice.

“4681. If a majority of the voters vote in favor of such authorization, the board shall have authority to construct and maintain said bridge, and may agree with the adjoining state, or with any other municipal division thereof, as to what part of said bridge said county will construct and maintain, or as to what percentage of the cost of construction and maintenance said county shall pay, and such county shall be under no greater liability than as evidenced by such agreement.”

“4682. In order to build and maintain such bridge, the board may, from year to year and on all the property in the county, levy an annual tax of not to exceed one mill. * * * [Bonds are authorized].”

“4683. [A method is outlined, whereby public utilities may use the bridge].”

“4684. Where there is a contract for joint maintenance of the entire structure, the *627county's liability for such maintenance shall only extend to that part or portion which is within the boundary line of this state.”

Thus authorized by statute, the appellees and others filed with the appellant board of supervisors the following petition:

“We, the undersigned, legal voters of said County of Pottawattamie, State of Iowa, and being in number more than ten per cent. (10%) of those voting at the last general election, do hereby state and represent that said Pottawattamie County, in the State of Iowa, borders upon a stream of water commonly known and designated as the Missouri River, which said stream of water forms the westerly boundary line of the state of Iowa and of said County of Pottawattamie in said State of Iowa, and we hereby respectfully petition, in accordance with the provisions of the statutes of the State of Iowa, the Board of Supervisors of said County of Pottawattamie, in the State of Iowa, to submit to the voters of said county at the next general election to be held in said county and state on November 6, 1928, the question as to whether said County of Pottawattamie in the State of Iowa shall be authorized to construct and maintain a foot and wagon bridge extending from Council Bluffs, in said County of Pottawattamie, in the State of Iowa, to Omaha, in the County of Douglas, State of Nebraska, and across said boundary line river commonly known and designated as the Missouri River. We further state that the total amount to be expended for the construction (the italics are ours) of said bridge shall not exceed $1,200,000, and that the portion of said total amount to be expended by said county of Pottawattamie, in the State of Iowa, for said purpose shall not exceed $400,000. The question we hereby petition you to submit to the voters is as follows: * * * (The proposition set forth at the beginning of the opinion.)”

Acting upon that petition under the aforesaid statutes, the board of supervisors adopted this resolution:

“Whereas, the petition purporting to be signed by electors of Pottawattamie County, asking that a certain proposition to authorize the construction and maintenance of a foot and wagon bridge between the cities of Omaha, Nebraska, and Council Bluffs, Iowa, be submitted to the electors, is so uncertain, defective, and indefinite that the question set out in the petition cannot be legally submitted to the electors and the Board has no power to order the same submitted; that the proposed bridge cannot be constructed within the limits of the taxing power of this board to pay for the same as provided by law, and that said petitions are illegal, unauthorized, and insufficient because the board is unable to determine that the requisite number of said petitioners are legal voters in Pottawattamie County, Iowa, and that said petitions are illegal and unauthorized by law for the purpose of constructing or aiding in the construction of such a bridge as is proposed.

Therefore, it is resolved by the Board of Supervisors of Pottawattamie County, Iowa, that said question set out in the Petition be not submitted to a vote of the electors; and be it further resolved that said petition be and it is hereby denied and dismissed.”

I. Appellees insist that the appellants, supervisors, were duty bound to consider but two questions: First, Was there a sufficient number of petitioners? and, second, Were such petitioners legal voters of Pottawattamie county? Continuing their suggestions in this regard, the appellees argue that the appellants, supervisors, acted entirely under the control of owners, stockholders, and managers of the tollbridge company aforesaid, and, when so doing, stepped aside from the path of official duties imposed under the circumstances.

To that phase of the controversy, attention will be first directed. If the petition substantially complied with the provisions of the statute under which it was filed, the county supervisors must call the election, providing the petitioners were sufficient in number and legal voters of the...