Richardson v. City of Jefferson

• Decision Date: 06 April 1965
• Docket Number: No. 51664,51664
• Parties: Guy C. RICHARDSON, Appellee, v. CITY OF JEFFERSON, Iowa, Vern Marten, as Mayor of said City, Paul Borst, William E. Brown, William J. Ecklund, Charles Davis, and William Lehman, as Members of the Council of said City, Appellants.
• Court: Iowa Supreme Court

Page 528

134 N.W.2d 528

257 Iowa 709

Guy C. RICHARDSON, Appellee, v. CITY OF JEFFERSON, Iowa, Vern Marten, as Mayor of said City, Paul Borst, William E. Brown, William J. Ecklund, Charles Davis, and William Lehman, as Members of the Council of said City, Appellants.

No. 51664.

Supreme Court of Iowa.

April 6, 1965.

Francis L. Cudahy, City Atty., Jefferson, and Jack R. Hall, Des Moines, for appellants.

R. K. Richardson, Jefferson, for appellee.

THORNTON, Justice.

Plaintiff has been granted an injunction by the district court enjoining defendant city, its mayor and city council from submitting to the voters a proposition of extending and improving its swimming pool located in Kelso Park, contracting indebtedness for such purpose not exceeding $20,000, issuing bonds in such amount and levying a tax of one mill per annum for the payment of the bonds and interest.

The defendants appeal. The defendants will be considered as one herein.

Defendant contends it possesses the power to proceed as proposed pursuant to chapter 235 of the Laws of the 60th General Assembly. The district court held chapter 235 was unconstitutional, stating:

'* * * it is manifest that it cannot be achieved by legislation alone for the reason that it is addressed to the Dillon Rule which has its roots in constitutional principles. * * * The Dillon Rule is a matter of relationship and even the power to delegate. To reverse that relationship is clearly a delegation of power, and an amputation or abdication of the legislative responsibility and power itself.'

Defendant's specific contentions are the Dillon Rule is of judicial origin and can be changed by the legislature or the courts, under Article III of the Iowa Constitution, I.C.A., the General Assembly may delegate to cities and towns broad and implied powers of self-determination as to strictly local and internal affairs. Plaintiff's contentions are exactly to the contrary. He does concede in his brief and argument. '* * * that Chapter 235 is nothing more than a declaration of legislative policy. As such, it is a proper exercise of legislative power and the Act should stand.'

I. Chapter 235, 60th General Assembly, amends section 368.2, Code of Iowa 1962, by adding thereto, I.C.A. § 368.2.

Section 368.2, in pertinent part, provides:

'Cities and towns * * * shall have the general powers and privileges granted, and such others as are incident to municipal corporations of like character, not inconsistent with the statutes of the state, for the protection of their property and inhabitants, and the preservation of peace and good order therein, * * *.'

Chapter 235 adds thereto the following, we will number the sentences for easy reference:

'[1.] It is hereby declared to be the policy of the state of Iowa that the provisions of the Code relating to the powers, privileges, and immunities of cities and towns are intended to confer broad powers of self-determination as to strictly local and internal affairs upon such municipal corporations and should be liberally construed in favor of such corporations. [2.] The rule that cities and towns have only those powers expressly conferred by statute has no application to this Code. [3.] Its provisions shall be construed to confer upon such corporations broad and implied power over all local and internal affairs which may exist within constitutional limits. [4.] No section of the Code which grants a specific power to cities and towns, or any reasonable class thereof, shall be construed as narrowing or restricting the general grant of powers hereinabove conferred unless such restriction is expressly set forth in such statute or unless the terms of such statute are so comprehensive as to have entirely occupied the field of its subject. [5.] However, statutes which provide a manner or procedure for carrying out their provisions or exercising a given power shall be interpreted as providing the exclusive manner of procedure and shall be given substantial compliance, but legislative failure to provide an express manner or procedure for exercising a conferred power shall not prevent its exercise. [6.] Notwithstanding any of the provisions of this secion, cities and towns shall not have power to levy any tax, assessment, excise, fee, charge or other exaction except as expressly authorized by statute.'

Section 2 of chapter 235 is not pertinent here.

The Dillon Rule followed by us to this date is:

'* * * a municipal corporation possesses and can exercise the following powers and no others: First, those granted in express words; second, those necessarily implied or necessarily incident to the powers expressly granted; third, those absolutely essential to the declared objects and purposes of the corporation--not simply convenient, but indispensable; fourth, any fair doubt as to the existence of a power is resolved by the courts against the corporation--against the existence of the power.' Dillon, C. J., in Merriam v. Moody's Executors, 25 Iowa 163, 170.

Clark, Dodge & Co. v. City of Davenport, 14 Iowa 494; Clark v. City of Des Moines, 19 Iowa 199; Ham v. Miller, 20 Iowa 450, 453; 1 Dillon Commentaries on Law of Municipal Corporations, Article 237, pages 448-450; and Incorporated City of Humboldt v. Knight, 255 Iowa 22, 24, 120 N.W.2d 457.

Chief Justice Dillon also said at page 171 of 25 Iowa, supra:

'The extent of a grant of power is to be ascertained from all of the sections relating to the subject; that is, they are to be read and construed in the light of each other, the better to determine the ultimate object of inquiry, viz., what did the legislature intend? The Mayor v. Howard, 6 H. & J. 392. If it clearly intended to confer the power, the courts should hold it to exist, otherwise not.'

Implicit in the above is, in construing statutes the courts search for the legislative intent as shown by what the legislature said, rather than what it should or might have said. See Rule 344(f)13, Rules of Civil Procedure, 58 I.C.A. The inquiry is not what the legislature meant but what does the statute mean.

That we are not to apply rules of construction where the statute is clear and unambiguous is well established. No ambiguity appears in the first three sentences of chapter 235. The first is a declaration of policy, that the provisions of the code relating to cities and towns are intended as stated and are to be liberally construed in favor of such corporations. This is true whether the word 'should' is considered as the past tense of shall expressing a command or as merely a wish. See 'Municipal Home Rule In Iowa: House File 380,' 49 Iowa Law Review 826, 848, 849 and note; and "Home Rule' for Iowa Cities and Towns?' by Leonard C. Abels, 13 Drake Law Review 53, 55. Coupled with the second and third sentences it is no more than a declaration of policy coupled with an affront on the Dillon Rule. The three amount to a rule of construction similar to section 4.2, Code of Iowa 1962, I.C.A. They do not confer power on cities and towns without reference to another statute. It simply states the Dillon Rule of strict construction has no application to the code and how its provisions shall be construed. The first sentence limits its application to those provisions of the code that pertain to 'strictly local and internal affairs,' the third to 'all local and internal affairs which may exist within constitutional limits.' These sentences limit the application of the liberal rule of construction expressed to local and internal affairs of cities and towns, other provisions of the code not relating to local and internal affairs are not affected. The limitation, 'within constitutional limits,' applies to the constitutional prohibitions local or special laws for the incorporation of cities and towns, town plats anc locating or changing county seats, Art. III, Sec. 30, cities and towns shall not become stockholders directly or indirectly in banking corporations, Art. VIII, Sec. 4, limitation on indebtedness, Art. XI, Sec. 3, and upon the implied constitutional prohibition against the delegation of legislative power by the legislature from the vesting of legislative authority in the General Assembly, Art. III, Sec. 1, as such pertains to cities and towns.

The fourth sentence is simply directing a change in the rule of construction, expressio unius est exclusio alterius, the express mention of one thing implies the exclusion of others. North Iowa Steel Company v. Staley, 253 Iowa 355, 357, 112 N.W.2d 364; and Dotson v. City of Ames, 251 Iowa 467, 471, 101 N.W.2d 711, 714. It states no section of the code which grants a specific power shall be construed as narrowing or restricting the general grant of power hereinabove conferred, unless expressly stated or the statute occupies the field. It says the statute stating a specific power shall not be construed as pertaining to the specific power only but shall be construed as in the third sentence to confer broad and implied powers. The words, the 'grant of powers hereinabove conferred' in this sentence do not refer to an express grant of power nor to the grant of power in section 368.2 prior to this amendment but refer to what purports to be a grant of broad and implied powers in the third sentence. None of these four sentences contains a grant of power, no language is used to denote granting power. The most they do is provide a rule of construction of other code provisions, it is only by reference to another statute that any 'broad and implied power over all local and internal affairs' may be found. There is no grant of such broad and implied power.

The fifth sentence does no more than provide that the manner or procedure where provided shall be substantially followed and that a granted power shall not fail because of the lack of an express manner or procedure for its exercise. This is declaratory of existing law. Baird v. Webster City, Iowa, 130 N.W.2d 432, 436; Incorporated City of Humboldt v. Knight, 255 Iowa 22, 120...