Poor v. Incorporated Town of Duncombe
| Decision Date | 17 February 1942 |
| Docket Number | 45603. |
| Parties | POOR v. INCORPORATED TOWN OF DUNCOMBE et al. |
| Court | Iowa Supreme Court |
[Copyrighted Material Omitted]
C. E. Richmann, of Cedar Rapids, and Maher & Mullen, of Ft. Dodge, for appellant.
Cor Van de Steeg, of Orange City, for appellees.
There are two cases in this appeal. One is an action in certiorari, in which the petition for the writ was filed on the 13th day of November, 1939, known as No. 28343 in the district court of Webster county; the other is an action in equity for injunction, the petition being filed on the same day, known as No. 28344 in the district court of Webster county. The two cases were by agreement tried together, and the facts were made applicable to each case. In the hearing they were treated as one case and are so treated in the abstract, briefs, and arguments in this court. They involve the same facts, which are not greatly in dispute and are mainly by stipulation. The record is voluminous, the pleadings, stipulation, and exhibits covering more than 180 pages of printed abstract. We will only briefly refer to the main facts, but will set out as much as is necessary under each of the assignments of error.
The town of Duncombe held a special election on November 14, 1938, at which the following question was submitted and carried: "Shall the following public measure be adopted, To-wit: Shall the Town of Duncombe, in the County of Webster and State of Iowa, establish, erect, maintain and operate an electric light and power distribution system, including all the necessary poles, wires, machinery, apparatus, and other requisites of such system, and including the necessary transmission lines therefor, either within or without its corporate limits, the cost of construction thereof not to exceed $15,000.00, to be paid solely and only out of the earnings of said system, without the incurring of any indebtedness therefor by the Town of Duncombe, Iowa, and enter into contract with some persons, corporation or municipality for the purchase of electric current for light and power purposes for resale thereof?" A proposed form of specifications and plans was adopted, at a meeting of the town council on May 12, 1939. The proceedings relating thereto are set out hereafter. Afterwards, a resolution was adopted, reciting the filing of the proposed plans and specifications, a form of contract covering municipal electric light and power distribution, and providing for notice of hearing before the council on May 17, 1940, and submission of bids at such hearing for the furnishing of electrical energy; and further providing that payment for the distribution plant would be made either by delivery to the contractor of revenue bonds bearing interest at 5 per cent, or by the payment of 90 per cent cash on engineer's monthly estimate of labor and material furnished and accepted and properly stored on the premises. At the May 17, 1940, hearing, a resolution was passed adopting the plans and specifications and form of contract, but the form of contract actually entered into is claimed by the plaintiff to vary from that provided for in the approved specifications and form. It was stipulated that the defendants propose to proceed with the construction and operation of an electric light and power distribution system in the town of Duncombe, and the purchase and resale of electrical current and energy through such distribution system, unless enjoined therefrom. There is no electric light or power plant or electric generating plant in the town of Duncombe. These matters are raised in the proceedings in both the certiorari and injunction suits. In the certiorari action the plaintiff claims that the proceedings of the town council were invalid and should be annulled, and in the injunction suit it is claimed that the contracts entered into with the Mankato Electric Company and the Gibbs-Cook Tractor and Equipment Company for the construction of an electric light and power distribution plant and the purchase of current and resale respectively are invalid and should be cancelled.
On the consolidation of the cases for trial the court rendered decrees finding the equities with the defendants and dismissing the plaintiff's petitions in both the certiorari and the injunction cases. Appeals were perfected from the decision, and, by stipulation and approval by the supreme court, the cases were consolidated on appeal, reserving to defendants the right to raise an issue as to the maintenance of both actions by the plaintiff at the same time.
Other facts appear in the opinion under the various questions submitted for our determination.
I. The right of the plaintiff to maintain this action as a taxpayer, an owner of taxable property, and a consumer of electrical energy, is assailed by defendants. They assert that the plaintiff cannot be heard or cannot prosecute either of the actions consolidated for trial. Defendants cite Iowa Public Service Co. v. City of Emmetsburg, 210 Iowa 300, 227 N.W. 514. In the majority opinion in that case it is held that a public utility corporation, operating in a city under a duly granted franchise, may not, solely as a taxpayer, maintain injunction to test the legality of an ordinance, on the grounds of unreasonableness of proposed rates and that the city has an option to purchase. As stated in such majority opinion, the primary question is whether the plaintiff utility company is a taxpayer in the sense that it is in any way affected as such, so that it may state that it is a real and proper party in the matter. This case was decided by a divided court, one member not participating, and three dissenting. It was afterwards distinguished in the case of Miller v. Inc. Town of Milford, 224 Iowa 753, 276 N.W. 826, 114 A.L.R. 1423. Also defendants cite Iowa Public Service Co. v. Parsons, Iowa, 272 N.W. 613. This case does not appear in the Iowa reports. It was an injunction case, and by the records of this court we find that the opinion was withdrawn and the appeal dismissed; hence the case is of no value as a precedent in holding that the plaintiff must show that his rights as a taxpayer will be seriously and irrevocably affected. Other cases cited refer only to the rule de minimis non curat lex. Our recent cases hold that a taxpayer and consumer can maintain such an action without any showing of any special or particular damage to the plaintiff. Miller v. Inc. Town of Milford, supra. See, also, Central States Electric Co. v. Inc. Town of Randall, 230 Iowa 376, 297 N.W. 804; Van Horn v. City of Des Moines, 195 Iowa 840, 191 N.W. 144; Abbott v. Iowa City, 224 Iowa 698, 277 N.W. 437.
In this case, where the plaintiff is a taxpayer, a citizen, and a user of electricity, he should have a right to appeal to the court from the action of his local council whenever his rights as a citizen are, or appear to be, illegally trespassed upon. We hold that the plaintiff was entitled to bring action to assert his rights.
II. It is urged that certain violations of the election statutes invalidated the proceedings of the town council in attempting to let contracts thereunder. This objection is based on the fact that in neither the election in November, 1938, nor the election in October, 1939--the first of which purposed to build a distributive system under the Simmer law, Code 1939, § 6134.01 to 6134.11, and the other was the one at which the Gibbs-Cook contract was submitted to a vote--was there any compliance with the provisions of section 856 of the Code, requiring one of the poll books to be delivered, within two days after the election, to the county auditor. It is further claimed that at the election in November, 1938, the official returns contained in the poll books were not attested by both of the parties who acted as clerks, but were signed by only one of them. A further irregularity is that, at both elections, the appointed judges and clerks were not all present and other persons were appointed to take their places as provided by section 736 of the Code. This fact is not disputed by the defendants, who state merely that the record thereof does not appear in the poll books of either of the elections, or elsewhere in the proceedings. No rights of any voters appear to have been infringed upon. It does not appear that the substituted judges and clerk were in any way disqualified to act as such. See Chambers v. Board of Directors, 172 Iowa 340, 154 N.W. 581.
The mere failure to file the poll book with the county auditor could not be held to vitiate the election. Plaintiff cites Jackman v. Black Hawk County, 156 Iowa 620, 137 N.W. 906, 909. The decision in that case did not concern the validity of the election, but referred to one of the provisions of the mulct law as to a petition of consent which was required to be signed by a majority of the voters residing in the city and voting therein at the last city election, as shown by the poll books. Under the mulct law, the poll books by which the sufficiency of the signatures to a petition was to be determined were those filed with the county auditor and not those retained by the local officer. In that case there was a failure to file and the authenticity of the signatures could not be determined; and the opinion states: "* * * under our statute, the right to be heard upon a petition of consent is not the right of the voter as such, but of those voters only who voted at the preceding election, and whose names are to be found upon the poll list--a list which we have defined and construed to be the one deposited with the county auditor." There being no such record, the names were rejected, but nowhere does the case challenge the validity of an election.
Plaintiff cites the case of Steeves v. Town of New Market,...
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