Lahn v. Incorporated Town of Primghar

• Decision Date: 05 August 1938
• Docket Number: 44458.
• Parties: LAHN et al. v. INCORPORATED TOWN OF PRIMGHAR et al.[a1]
• Court: Iowa Supreme Court

281 N.W. 214

225 Iowa 686

LAHN et al. v. INCORPORATED TOWN OF PRIMGHAR et al.^[a1]

No. 44458.

Supreme Court of Iowa.

August 5, 1938

Appeal from District Court, O'Brien County; R. G. Rodman, Judge.

This is an action to enjoin the establishment of a municipal electric light and power plant in the town of Primghar, Iowa, as illegal. The lower court entered decree and judgment in favor of defendants, and plaintiffs appeal.

Affirmed.

Locke & Lampman, of Primghar, Iowa, and G. C. Murray, of Sheldon Iowa, for appellants.

Cornelius Vande Steeg, of Orange City, Iowa, and Stipp Perry, Bannister & Starzinger, of Des Moines, for appellees.

KINTZINGER, Justice.

At a special election held in the town of Primghar, Iowa, on May 25, 1937, the following proposition for the establishment of a municipal electric light and power plant was carried by the voters: " Shall the Town of Primghar * * establish * * an electric light or power plant with all the necessary poles, wires, machinery, apparatus and other requisites of such plant, the cost of construction thereof not to exceed $125,000.00 to be paid solely and only out of the earnings of said plant without the incurring of any indebtedness therefor by the town?" (Italics ours)

The proposition submitted on the foregoing ballot was whether or not the town should establish an electric light or power plant; and appellants' chief contention for declaring the election void is because the question was submitted in the alternative.

Thereafter plans and specifications for the proposed plant were duly filed with the town clerk and after notice of a hearing thereon was duly given, the proposed plans and specifications and form of contract were adopted, upon which bids were thereafter received. These specifications, among other things, provided: " Approximately the last $40,000.00 (of bonds issued for the payment of said plant) shall be callable in inverse numerical order, at any interest due date, after eight years from date of issue."

A contract for the construction of the plant was entered into between the town and the Kepp Contracting Company. Appellants allege that the above provision for the callability of bonds was omitted therefrom, making the contract invalid because of a variance between the contract and the specifications.

Appellants also question the validity of the election and the contract entered into thereafter upon other grounds which are set out in the opinion.

After the contract for the construction of the plant was let to the Kepp company, plaintiffs filed a petition in equity asking that the contractor be enjoined from proceeding with the execution of the contract because the election and the contract were both invalid. Other facts are stated in the opinion.

The lower court held in favor of defendants, and plaintiffs appeal.

I.

Appellants contend that the election was invalid because the question submitted on the ballot was in the alternative, calling for the establishment of an electric light or power plant, and was therefore neither a vote for an electric light plant, nor for a power plant, nor for a combined electric light and power plant.

The statute authorizing the establishment and construction of a light or power plant is section 6127 of the Code, which provides as follows: " Cities and towns shall have the power to purchase, establish, * * * and operate * * * heating plants, waterworks, gasworks, or electric light or power plants, with all the necessary reservoirs, mains, * * * poles, wires, * * * and lease or sell the same."

The ballot submitted at the election was as follows: " Shall the town of Primghar * * * establish, erect, maintain, and operate an electric light or power plant with all the necessary poles, wires, machinery, apparatus and other requisites of such plant, the cost of construction thereof not to exceed $125,000 to be paid solely and only out of the earnings of said plant without the incurring of any indebtedness therefor by the Town of Primghar, Iowa?" (Italics ours)

Appellants contend that, by the use of the word " or" between the words " electric light" and the words " power plant" as used on the ballot, the city was not authorized to establish a combined light plant and power plant, but that in order so to do, it was necessary to have used the conjunctive particle " and" between the words " electric light" and the words " power plant; " and that by failing to use the words " light and power plant" on the ballot, the city was not authorized to establish both a " light plant" and a " power plant."

The question, therefore, relating to this branch of the case is whether or not the failure to use the term " light and power plant" invalidates the election.

It is conceded by both parties that if the ballot had submitted the question of a combined electric light and power plant the election would have been legal. It is also conceded that in practically all of our cases where a " light and power plant" was established, the question submitted related to the establishment of a light and power plant. Hogan v. Corning, 217 Iowa 504, 250 N.W. 134; Iowa Electric Light & Power Company v. Town of Grand function, 216 Iowa 1301, 250 N.W. 136; Wyatt v. Manning, 217 Iowa 929, 250 N.W. 141; Greaves v. Villisca, 217 Iowa 590, 251 N.W. 766; Pennington v. Fairbanks, Morse & Co., 217 Iowa 1117, 253 N.W. 60; Brutsche v. Coon Rapids, 218 Iowa 1073, 256 N.W. 914; Id., 220 Iowa 1295, 264 N.W. 696; Id., Iowa, 272 N.W. 624; Northwestern Light & Power Co. v. Grundy Center, 220 Iowa 108, 261 N.W. 604.

Appellants contend that the word " or" contained in this statute and the word " or" contained in the ballot should be construed in a disjunctive sense so as to prevent the word " or" from being construed as the word " and."

Appellees contend that it has never been held illegal to establish a combined light and power plant, where the question was submitted in the words of the statute for establishing an electric light or power plant.

It is true that the word " or" is a disjunctive particle, and usually marks an alternative as either " this" or " that," depending upon the words with which it is used; and, " while in its strict signification the term expresses a disjunctive meaning and marks an alternative, it may be used or construed in a conjunctive sense." 46 C.J. 1124, section 1; 46 C.J. 1126, section 6. It has accordingly been held by courts generally that although the word " or" may express a disjunctive meaning rather than a conjunctive one, it may nevertheless be used in a conjunctive sense, and hence the word " or" may be construed to mean " and." 46 C.J. 1126, section 6.

A conjunctive meaning has been repeatedly placed upon the word " or" by this court in order to prevent an absurd or unreasonable result. State v. Myers, 10 Iowa 448; State v. Brandt, 41 Iowa 593, 614; State v. Smith, 46 Iowa 670, 673; Eisfeld v. Kenworth, 50 Iowa 389, 391; Williams v. Poor, 65 Iowa 410, 415, 21 N.W. 753, 755; Mitchell v. Charles City W. Ry. Co., 169 Iowa 237, 251, 148 N.W. 975, 980; State v. Gardner, 174 Iowa 748, 755, 156 N.W. 747, 750, L.R.A.1916D, 767, Ann.Cas.1917D, 239; Chicago, R.I. & P. R. Co. v. Rosenbaum, 212 Iowa 227, 237, 231 N.W. 646, 650.

In State v. Brandt, 41 Iowa 593, loc. cit. 614, this court said:

" By recurring to the language of section 4243, it will be seen that, by changing the word ‘ or’ preceding the word ‘ unaccounted for’ to the word ‘ and,’ the nature and consequences of the offense are entirely changed; * * * while the offense punishable under section 4243, when the word ‘ and’ is substituted for the word ‘ or,’ results in a loss or injury to the tax-payers * * * to the extent of the money unlawfully used or loaned and ‘ unaccounted for.’ * * * By thus construing ‘ or’ to mean ‘ and,’ * * * we make the several sections harmonious and consistent. * * *

That courts have interpreted the word ‘ and’ as a disjunctive, and the word ‘ or’ as a conjunctive when the sense absolutely required, * * * is laid down as elemental. Bishop on Statutory Crimes, p. 243. * * *"

In State v. Smith, 46 Iowa 670, loc. cit. 673, this court said: " ‘ It is a rule in the construction of statutes, that * * * the grammatical sense of the words is to be adhered to. If that is contrary to, or inconsistent with, any expressed intention or any declared purpose of the statute, or if it would involve any absurdity, repugnance or inconsistency in its different provisions, the grammatical sense must then be modified, extended or abridged, so far as to avoid such an inconvenience.’ * * * This court has held the doctrine to be elementary that the word and may be interpreted as a disjunctive, and the word or as a conjunctive."

In Williams v. Poor, 65 Iowa 410, loc. cit. 415, 21 N.W. 753, 755, this court said: " In the construction of statutes the words ‘ and’ and ‘ or’ are convertible, as the sense may require, even in a criminal statute, where a strict construction usually prevails. State v. Myers, 10 Iowa 448; State v. Brandt, 41 Iowa 593."

In Chicago, R.I. & P. R. Co. v. Rosenbaum, 212 Iowa 227, 237, 231 N.W. 646, 650, this court in construing the provisions of a statute said: " It will be observed that the discrepancy between the title to the act and the act itself is in the use of the words ‘ and’ and ‘ or.’ It is a well-recognized rule of construction that, when necessary to effectuate the intent of the Legislature, conjunctive words may be construed as disjunctive and vice versa. See 36 Cyc. 1123. This rule of construction has even been applied to statutes relative to criminal law. See State v. Myers, 10 Iowa 448; State v. Brandt, 41 Iowa 593."

Many cases are cited by appellants in support of the contention that the word " or" in the statute...