Swan v. City of Indianola

• Decision Date: 03 June 1909
• Parties: SWAN ET AL. v. CITY OF INDIANOLA ET AL.
• Court: Iowa Supreme Court

142 Iowa 731

121 N.W. 547

SWAN ET AL.

v.CITY OF INDIANOLA ET AL.

Supreme Court of Iowa.

June 3, 1909.

Appeal from District Court, Warren County; J. D. Gamble, Judge.

Suit in equity to enjoin defendants from entering into a contract to pave certain streets in the city of Indianola. A restraining order was issued without notice, and defendants appeared and filed a motion to dissolve it. This motion was denied, and at the same time a temporary writ of injunction was issued restraining the city from entering into or completing the contract. The defendants appeal. Reversed and remanded.H. H. McNeil, Henderson & Henderson, and Bowen, Bremner & Alberson, for appellants.

W. H. Berry, for appellees.

DEEMER, J.

Plaintiffs are residents, taxpayers, and abutting owners of property in defendant city, which streets the said city is proposing to pave. Defendants are the city, its mayor, the members of the city council, and the city treasurer. The action is to enjoin defendants from entering into a contract for the pavement of certain streets in said city and from taking any other steps looking toward the pavement of the streets. It is claimed: (1) That in all the preliminary proceedings taken with reference to the pavement of the streets the council was not properly organized or authorized to do business, for the reason that the regular clerk was not present at any of the meetings and did not keep the minutes thereof, and that the council did not fill the vacancy by electing a pro tempore clerk as provided by law; (2) that the city council was guilty of fraud and conspiracy for the pavement; (3) that the ordinance is unreasonable, unfair, and oppressive, in that the kind of pavement adopted is expensive and not adapted to small cities such as the defendant and an unwarranted burden upon property owners; (4) that the contract will involve the city in debt beyond its constitutional limit; and (5) that the city is in need of a sewerage system which should be put in before the pavement is laid, and that its water supply is inadequate and should be enlarged before any pavement is put in. The trial court granted a restraining order upon the allegations of the petition without any notice to the defendants. Thereafter defendants appeared, filed answer, and a motion to dissolve the restraining order. This motion was submitted upon the testimony adduced by either side, and the trial court refused to dissolve the order and granted a temporary writ of injunction. At the same time defendants filed an amendment to their answer and asked the court to hear further testimony before granting the temporary writ of injunction. This the trial court refused to do, but, in response to said request, made the following order: “Without expressing any opinion as to the merits of the cause on any of the points raised by any of the pleadings, I am of the opinion: That this matter should be continued to the final hearing of the cause on its merits; that the motion to dissolve is premature, and in effect ‘is an attempt to obtain by summary action a decision as to the equity of the case,’ and should be overruled and denied.”

It is provided in section 4101 of the Code that an appeal may be taken from an order granting or refusing to dissolve an injunction, and while, broadly speaking, the matter of granting or continuing a temporary writ rests largely in the sound discretion of the trial court (Walker v. Stone, 70 Iowa, 103, 30 N. W. 39), yet this discretion is a legal one, and, if not based upon sufficient grounds, will be reversed upon appeal. Sinnett v. Moles, 38 Iowa, 25;Stewart v. Johnston, 44 Iowa, 435;Fuson v. Conn. Ins. Co., 53 Iowa, 609, 6 N. W. 7. The general rule is that, where all the material allegations of the petition for an injunction are fully and satisfactorily denied in the answer, the preliminary injunction, if one has been allowed, will be dissolved. Walker v. Stone, supra; Carrothers v. Newton Co., 61 Iowa, 681, 17 N. W. 43;Russell v. Wilson, 37 Iowa, 377. Of course there are exceptions to this rule, as where fraud is the gravamen of the action, or it is apparent that by a dissolution of the injunction the party will lose all benefit to accrue from final success in his suit. Johnston v. Railroad, 58 Iowa, 537, 12 N. W. 576;Fargo v. Ames, 45 Iowa, 494;Stewart v. Johnston, 44 Iowa, 435;Wingert v. City of Tipton, 134 Iowa, 97, 108 N. W. 1035, 111 N. W. 432;Sinnett v. Moles, 38 Iowa, 25. But if upon the entire record nothing but questions of law are involved, and it appears that the injunction was improvidently issued, it will be dissolved upon appeal. Burlington Co. v. Dey, 82 Iowa, 312, 48 N. W. 98, 12 L. R. A. 436, 31 Am. St. Rep. 477;Gossard v. Crosby, 132 Iowa, 155, 109 N. W. 483, 6 L. R. A. (N. S.) 1115. The trial court bottomed its ruling upon Wingert v. City, supra; but a reading of that case will show that defendants upon a motion to dissolve, supported by affidavits only, were held not entitled to an investigation of the merits of the case. It was there held that the motion amounted to nothing more than an attempt to obtain by summary action a decision upon the merits of the case, and that this should not be permitted. Nothing there said runs counter to the views above expressed, which are well fortified by authority.

With these rules in mind, we come now to the question of the correctness of the ruling on the motion to dissolve and of the order granting the temporary writ of injunction. The answer filed by defendants denied most of the allegations of the petition, and there is little or no dispute regarding the facts as appears from the testimony adduced. These are the material facts as shown by the record: On the 13th day of July, 1908, one of the members of the city council of defendant city presented a resolution directing the solicitor and engineer to prepare a resolution of necessity for the paving of certain streets, being the ones in controversy in this action. Pursuant thereto a resolution was prepared and submitted to the council at a meeting held August 17, 1908. A motion was then made that the paving be of asphalt. Thereupon another member of the council moved to amend by substituting creosoted blocks in place of asphalt. This amendment was carried, and September 25th was fixed as the date for the final consideration of the resolution of necessity. At a meeting held on September 25th, the council heard objections to the proposed resolution offered by various property owners and postponed further consideration until the following Monday. On Monday, the 28th of September, the council again met pursuant to adjournment and duly passed the resolution of necessity; the vote being six for and one against and one councilman absent. At this time it was proposed to use four-inch blocks with a six-inch concrete foundation. At a regular meeting of the council held on October 12, 1908, one Morrison, representing the Kettle River Stone Quarries Company, who in some manner heard of the action of the council, appeared before that body and extended an invitation on behalf of his company to the members of the council to accompany him to Minneapolis and Des Moines and to the plant of his company at Sandstone, Minn., to examine the creosote block pavement there in use and that manufactured by his employer at its expense. This invitation was publicly extended and as publicly accepted, and four members of the council and the city solicitor visited the places named at the expense of the company, and upon their return made a favorable report regarding the use of the blocks. They concluded and recommended, however: That a straight curb be used, instead of a combined curb and gutter; that a three-inch block be used, instead of a four-inch; and that the concrete foundation be five inches, instead of six. This report was publicly made, and the recommendations as we understand it adopted. Thereafter and on November 19, 1908, the city council passed another resolution declaring the necessity of paving, and, after fixing the width of the paving, January 5, 1909, was fixed as the day for the consideration of the resolution and for the hearing of objections thereto. Notice thereof was duly given, and at the meeting in January objections to the resolutions were heard and considered, and the resolution finally adopted by unanimous vote. Afterward plans and specifications were prepared by the city solicitor and engineer, and at a meeting held on January 11, 1909, a resolution was passed ordering the construction of the improvement. The clerk having advertised for bids according to law, the council again met on February 8th, opened the proposals and bids, and, after hearing objections, accepted that one filed by the Kettle River Quarries Company; it being the lowest one presented. Five bids were presented by various parties located at Des Moines, Indianalo, Iowa City, Shenandoah, and Minneapolis, Minn. The accepted bid fixed the price of paving at $2.61 per square yard, of the curb 35 cents per linear foot, and of extra grading at 35 cents per cubic yard. At this point this action was brought to enjoin the letting of the contract and for other relief.

Having already stated in a general way the contentions made for appellant, we now go to the exact points relied upon. Mrs. Cora Lee had been duly elected clerk of the defendant city, and in July of the year 1908 it was discovered that she was ineligible under section 643 of the Code. She thereupon resigned, and her husband, Arthur Lee, was elected in her stead, with the understanding that his wife should assist him. It was the desire of the council that Mrs. Lee should keep the notes of the meeting and should write up the records. Lee himself was not present at any meeting of the council above referred to, but his wife was, and she kept notes of the meetings, which were transcribed into and upon proper books and signed by Arthur Lee, clerk, in his own handwriting. At each meeting...