McLaughlin v. City of Newton
| Decision Date | 20 July 1920 |
| Docket Number | 33638 |
| Citation | 178 N.W. 540,189 Iowa 556 |
| Parties | E. M. S. MCLAUGHLIN, Appellee, v. CITY OF NEWTON et al., Appellants |
| Court | Iowa Supreme Court |
Appeal from Jasper District Court.--D. W. HAMILTON, Judge.
ACTION in equity to enjoin the defendant city and A. H. Rich proposed grantee of an electric franchise, from proceeding under ordinances duly passed by the city council, granting to Rich a franchise to operate an electric light plant within the corporate limits of the city. The injunction was granted by the court on the theory that the election returns did not affirmatively show an approval by a majority vote of the electors, because the ballots used did not state the proposition in full, to which the voter was asked to give his consent, as required by Section 1106 of the Code Supplement of 1913, and it did not appear, therefore, that a majority had authorized the proposed action. Defendant appeals.
Affirmed.
J. E Cross and George E. Campbell, for appellants.
Stipp Perry, Bannister & Starzinger and E. O. Korf, for appellees.
I.
This action is brought by a resident taxpayer of the city of Newton. Its purpose is to restrain the mayor and city council and one A. H. Rich from proceeding under, or in any manner carrying into effect, two certain ordinances, hereinafter referred to, regularly passed by the city council, and submitted to the electors for their approval at a special meeting called for that purpose, and, on the face of the record, approved by a large majority. The council proposed, in one of the ordinances, to grant to the defendant A. H. Rich a franchise for an electric light, heating, and power plant, to be constructed and operated in the defendant city, and by the other to sell to Rich a certain municipal plant, then owned and operated by the city. The scheme of the two ordinances apparently was to pass to defendant Rich all the right, title, and interest of the defendant city in the old plant, for a consideration named, and, when this was done, to grant to him a franchise to erect and maintain and operate another plant in the city for the same purpose. The first ordinance is known as No. 185, and by it the city proposed, subject to the approval of the electors of the city, to grant to Rich, his heirs, successors, and assigns, the right to maintain and operate in the city of Newton a plant for the production, transmission, and sale of electric current for light, power, and heat for a term of 25 years, subject, however, to a condition expressed therein in what is known as Ordinance 187, to wit, that Rich purchase the old plant at a consideration named. It appears that the old plant had become antiquated, and did not furnish such service as the city required, and it was the thought of the city council to sell the old plant to Rich, and grant to him the right to furnish fuller and better service than could be had through the plant then owned by the city.
We will not set out these ordinances in full in this opinion. They are long. Ordinance 185 contains 23 sections. The legality of the ordinances is not called in question. Ordinance 185 provided, among other things, that it should not become effectual unless the proposition to sell to Rich should be approved by a majority of the legal voters of the city. It was further provided that the two propositions should be submitted to the legal voters of the city at a special election, to be held on the 3d day of May, 1920, under a proclamation to be issued by the mayor, to be published in two newspapers published in the city, for at least four consecutive weeks before the election; and further, that, in the event the ordinances were approved by the electors, they should not become effectual unless Rich, within five days thereafter, accepted the terms and conditions of the franchise ordinance; and that neither proposition should become effectual unless both were approved. Notice was given, and the city undertook to submit to the voters of the city the propositions contained in the two ordinances, for their approval. The election was called for and held on the 3d day of May, 1920. At that election, the record shows that, on the proposition to sell the old plant, there was an affirmative vote of 895, against a negative vote of 459, a total vote on this proposition of 1,354. On the proposition to grant the franchise, there were 911 affirmative votes against 433 negative votes, making a total vote on the proposition of 1,344 votes. The total voting population of Newton at that time was about 1,400. So it appears on the face of the record that both propositions carried by a large majority.
The injunction is sought on the following grounds:
First. That the notice of election was insufficient, in that it did not have set out in full the proposed ordinance or public measures. It is not contended that, if the notices were sufficient in substance, the council did not comply, in all other respects, with the requirements of the statute as to publication.
Second. It is contended that the ballot did not have printed thereon in full the proposed ordinances or measures, as required by Section 1106 of the Code Supplement of 1913.
Third. That the ballots were not printed on yellow paper, as required by said section.
Fourth. That the two propositions were printed on separate ballots, when they should have been printed upon the same ballot, as required by the said section.
So it is apparent that the injunction is sought on two grounds: (1) That the notice of election given was insufficient in substance; and (2) that the ballots did not conform to the requirements of the statute, in character, form, and substance.
It is true, as contended by the plaintiff, that the notice of the election, as published, did not contain the ordinances in full, but it does appear that the purpose of the election and the measures that the electors were required to pass upon were, in substance, set out in the notice.
The power to purchase, establish, erect, maintain, and operate an electric light or electric power plant is found in Section 720 of the Supplement to the Code, 1913. This section provides that they (meaning the city council) may grant to individuals or private corporations the authority to erect and maintain such works or plants for a term of not more than 25 years, and also provides that this authority shall not be exercised unless a majority of the legal electors voting thereon declare in favor of the same, at a general, city, or special election, called for that purpose. It is apparent that the power to grant to Rich the right to erect and maintain the plant in question existed, and that the city council attempted to exercise it, and that the ordinance was passed in pursuance of the authority granted. This authority, though it existed, did not and could not become effectual to bind the city or inhabitants until its exercise was approved by the electors of the city. It appears that, following strictly the requirements of the statute, the city council attempted to exercise the power granted, and passed and published the ordinances in due form, before the election was called. No question is made upon this point. After the ordinances had been passed, the election was called, the matter submitted to the voters for their approval, and a vote taken. There is no question as to the sufficiency of the notice to invoke an expression of the will of the people, except as hereinbefore set out. Our statute does not prescribe the form of notice, nor does it attempt to say what the notice shall contain. Section 721, Code Supplement, 1913, reads:
"Notice of such election shall be given in two newspapers published in said city or town, if there are two, if not, then in one, once each week for at least four consecutive weeks."
This was done, and it appears that the council ordered the question submitted at the special election called for that purpose. The notice published contained the substance of what the council proposed to do, and fixed the time and place at which the elector might express his approval or disapproval and referred the voters to the ordinance which had been passed, published, and recorded, for a fuller expression of the city's purpose and what it proposed to do. There was not only an official publication for four weeks, as required by the statute, but an unofficial publication in papers of general circulation in the city. It further appears that the matter of granting the franchise and selling the old plant had been fully and freely discussed in the city for many weeks before the election. Public meetings were held in many places in the city, to which the voters were invited, and at which the merits and demerits of the proposed action of the city were fully and freely discussed. We do not mean to be understood as saying that this method of giving notice to the people of the proposed action of the city council can be substituted for the statutory requirements. The ordinances, reciting fully what the council proposed to do, were officially published, published in conformity with the statute, and notified the people of the contemplated action of the city, touching the matter now in controversy; and the notice of election made reference to the proceedings of the city council touching its proposed action, as the same appeared of record. Inasmuch as the city council had taken action before the election was called, and its purpose was embodied in ordinances duly framed, considered, and passed by the council, and inasmuch as these ordinances had been fully published, as required by statute, and made a matter of record in the office of the city clerk,...
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