Spitzer v. Runyan

Decision Date13 April 1901
Citation85 N.W. 782,113 Iowa 619
PartiesA. E. SPITZER et al., Appellants, v. ALEC RUNYAN, JR., Mayor, AND A. M. ROWE et al., Councilmen of the City of Vinton
CourtIowa Supreme Court

Appeal from Benton District Court.--HON. OBED CASWELL, Judge.

PLAINTIFFS sued out of the district court a writ of certiorari to test the validity of an ordinance passed by the city council of the city of Vinton whereby certain streets and alleys were vacated, and the land comprised therein granted to the Burlington, Cedar Rapids & Northern Railway Company for depot purposes. The district court dismissed the petition at plaintiffs' costs, and they appeal.

Affirmed.

Jamison & Smyth for appellants.

S. K Tracy and C. Nichols for appellees.

OPINION

WATERMAN, J.

Defendant Runyan is the mayor, and the other defendants are the councilmen, of said city. On March 30, 1899, such council unanimously passed an ordinance vacating certain streets and alleys upon conditions to be complied with by the Burlington Cedar Rapids & Northern Railway Company, which will be further mentioned later on, and granted an easement in the land covered thereby to said railway company for depot purposes. Plaintiffs are the owners of real estate adjacent to, but not abutting upon, the vacated portion of any of said streets or alleys. It seems the railway line is, and has for some time been, in operation through the city of Vinton crossing a number of streets at grade. The ordinance purports to be inspired by a desire to provide for the safety and convenience of the inhabitants of the city. It is conditioned upon the railway constructing on one cross street a viaduct over its tracks, and on another a subway beneath the same. Appellants discuss the action of the council on the theory that it is governed by sections 885 and 886 of the Code, and complain that there was no petition signed by a majority of the resident freehold taxpayers of the city requesting such action, nor any vote of the taxpayers in favor of the same, as is required by the last of these sections. But we do not think these provisions have any application to a state of facts such as is presented in this case. They relate solely to the right of cities to purchase land or obtain it by condemnation, in order to donate it to a railway for depot purposes. Here the city does not have to acquire the land. It already owns what it desires to convey and the grant is made for a consideration. The term of the petition and the provisions for an election, as contained in section 886, are inconsistent with the facts presented in this case, and cannot apply. We must look further, then, for the statutes that govern. Section 751, among other powers given, authorizes cities and towns to vacate streets and alleys. It is said by appellants that this power can be exercised only for some public purpose, and that the purpose here is not public. While the power to vacate is not arbitrary, and may to some extent be controlled by the courts, the cases are exceptional where such interference is authorized. McLachlan v. Town of Gray, 105 Iowa 259, 74 N.W. 773. See, also, 2 Dillon, Municipal Corporations, 666. We have held that a city council may divert the ground covered by an alley which is vacated from public to private use by granting it to an individual. Dempsey v. City of Burlington, 66 Iowa 687, 24 N.W. 508. Likewise that a city may vacate an alley for the purpose of allowing it to be devoted to private use. City of Marshalltown v. Forney, 61 Iowa 578, 16 N.W. 740. We do not feel called upon here to go to the extent of the doctrine announced in these cases in order to decide the issues before us. Ostensibly, the vacation and conveyance of the streets and alleys in question were for the public good. Where no fraud is charged, the determination of such a question is within the discretion of the council, and not subject to control by the courts. As to what is a discretionary power, see 1 Dillon, Municipal Corporations, section 98. In matters discretionary, mandamus will not lie. 2 Dillon, Municipal Corporations, section 832. Nor can damages be recovered for a faulty exercise thereof. 2 Dillon, Municipal Corporations, section 949. It is said in this last section, "Such powers are conferred, to...

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