Talbott v. City of Des Moines
| Decision Date | 20 November 1934 |
| Docket Number | 42690 |
| Parties | JOHN S. TALBOTT, Appellant, v. CITY OF DES MOINES et al., Appellees |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--FRANK S. SHANKLAND, Judge.
The board of review of Des Moines, over the owner's objections, fixed for assessment purposes the valuation of a 265-acre farm, owned by the appellant, John S. Talbott, at $ 23,800. It is said by the appellant that the assessment was based upon a valuation exceeding the actual value of the property, and that the assessment was otherwise inequitable. From the action of the board of review, the owner appealed to the district court. At the trial on the appeal, the district court disallowed any relief to the appellant, and dismissed his appeal. Accordingly, the appellant has appealed from the judgment of the district court.--Modified and affirmed.
Modified and affirmed.
C. B Hextell, for appellant.
F. T Van Liew, Chauncey A. Weaver, J. A. Ralls, C. I. McNutt, and D. W. Ash, for appellees.
The appellant, John S. Talbott, owns 265 acres of land within the corporate limits of Des Moines. Dwight Lewis is the chairman of the board of review in the city of Des Moines, and John MacVicar, Francette Miller, Pete Welsh, and Roscoe P. Bane are members of the board of review. As such chairman and members of the board of review, the persons named are the appellees.
On February 24, 1933, the assessor of Des Moines fixed the actual value of the appellant's land, for assessment purposes, at $ 23,800. In due time, the appellant appeared before the local board of review and objected: First, that the actual value thus fixed was excessive; and, second, that in any event the assessment was inequitable. After consideration, the local board of review refused to change the assessment, and consequently the appellant appealed to the district court. That tribunal affirmed the action of the assessor and the local board of review. From that judgment of the district court, the appellant appealed to this court.
Three propositions are submitted for consideration on this appeal: First, it is said by the appellees that the district court did not have jurisdiction because under the statutes of Iowa, as they existed at the time, an appeal was not allowable from the local board of review to the district court; second, it is claimed by the appellees that the assessor properly fixed the actual value of the appellant's land at $ 23,800; and, third, it is asserted by the appellees that the assessment in no event is inequitable.
I. At the outset it is claimed by the appellees, as before indicated, that the district court did not have jurisdiction because there was no statute in Iowa allowing an appeal at the time the appellant attempted to appeal from the action of the local board of review to the district court.
Sections 7132 and 7133 of the 1927 Code provided for complaints to the local board of review, and for an appeal to the district court from an adverse action by such board. Some time during the month of April, 1929, the legislature enacted chapter 205, Acts of the Forty-third General Assembly. See Davidson Building Co. v. Mulock, 212 Iowa 730, 235 N.W. 45. Sections 28, 29, and 30 of said chapter 205, slightly amended sections 7132 and 7133 of the 1927 Code, in order to make them comply with the scheme of adjusting tax matters, as contemplated by said sections 28, 29, and 30 of the aforesaid chapter 205. Following the amendment, section 7132 remained practically the same except that the word "final" was stricken therefrom; but section 7133 was changed by the amendatory act in this way: The word "board" was stricken therefrom, and the words "county board of review" were inserted in lieu thereof, in order to supplement and carry out the rest of the amendatory act and thereby fit section 7133 to the machinery relating to the adjustment of taxation, contemplated by sections 28, 29, and 30 of said amendatory chapter. These changes are fully explained and set forth in Davidson Building Co. v. Mulock, supra.
On February 10, 1931, this court declared that sections 28, 29, and 30 of said amendatory chapter 205 were void from their inception and of no effect. See Davidson Building Co. v. Mulock, supra. Of course, if sections 28, 29, and 30 of said amendatory chapter 205 were void from their inception and of no effect, the decision to that effect in Davidson Building Co. v. Mulock, supra, would carry down that part of the same amendment relating to sections 7132 and 7133 of the 1927 Code. Davidson Building Co. v. Mulock, supra. Consequently the words "county board of review" attempted by the amendatory act to be placed in section 7133 of the 1927 Code, in lieu of the word. "board", would be removed when the amendatory act was declared void and of no effect by our decision in the case of Davidson Building Co. v. Mulock, supra. The question remains, then, whether, because the amendatory act was thus void and of no effect, the word "board" is to remain in section 7133 the same as it was in the original legislation.
If the act of this court in declaring the amendment void and of no effect amounted to a severance of the void amendments without harm to the original legislation contained in sections 7132 and 7133 of the 1927 Code, then the appeal in the case at bar is allowable and the district court had jurisdiction thereof. Otherwise the district court would have no jurisdiction, because sections 7132 and 7133 would be so emasculated by the attempted amendment that the remainder would not furnish a workable statute permitting an appeal. In Davidson Building Co. v. Mulock, supra, after declaring the amendatory act void and of no effect, we clearly indicated that nevertheless an appeal was there allowed under sections 7132 and 7133 of the 1927 Code. That conclusion could have been based only upon the proposition that the original sections 7132 and 7133 of the 1927 Code remained intact after the void and unenforceable amendment had been removed therefrom.
Subdivision 1 of section 63 of the 1931 Code provides:
This provision of the legislature has no application, however, to the case at bar. Said section 63 of the Code has reference to repeals by the legislature. We do not have before us a case of legislative repeal. On the other hand, we are confronted with the situation where the legislature attempted to amend an existing statute but failed to accomplish such amendment because the attempted amendment was void for uncertainty and unworkability. Such voidness was from the inception of the attempted amendment. The words removed from sections 7132 and 7133, before mentioned, were taken out merely as a part of the void amendment. It clearly was not the intention of the legislature to take out those words even though the amendment was not valid. In fact, the legislature only attempted to remove such words from sections 7132 and 7133 as would have been inconsistent with the void amendment had the same stood as a valid act of the legislature. But, because the amendment was void, no inconsistency existed, and therefore the legislature clearly intended that if the void amendment could not stand, that the original statute attempted to be amended should stand unaffected by the void amendment.
If an act is repealed by an unconstitutional amendment, the former act remains in force when the unconstitutional amendment is declared void, providing this result gives effect to the legislature's intention. Childs v. Shower, 18 Iowa 261; Flannagan v. Jepson, 177 Iowa 393, 158 N.W. 641, L. R. A. 1918E, 548. See, also Davidson Building Co. v. Mulock, supra. We said in the Flannagan case just cited:
"An unconstitutional amendment to a valid legislative act leaves the former act the same as though no attempt had been made to amend." (See syllabus.) See, also, Davidson Building Co. v. Mulock, supra.
To the same effect see: Nash v. Lynch, 226 A.D. 421, 235 N.Y.S. 517; Board of Education v. Hunter, 48 Utah 373, 159 P. 1019; McClellan v. Stein, Judge, 229 Mich. 203, 201 N.W. 209; Smith v. Chickasaw County, 156 Miss. 171, 125 So. 96, 705; Rippinger v. Niederst, 317 Ill. 264, 148 N.E. 7; People v. Schaeffer, 310 Ill. 574, 142 N.E. 248; Geyer v. Buck (Sup.) 175 N.Y.S. 613; State et al. v. Mundy et al., 53 N.D. 249, 205 N.W. 684; Polk v. Booker et al., 112 Ark. 101, 165 S.W. 262; Jones v. State, 151 Ga. 502, 107 S.E. 765; Bissett v. Pioneer Irrigation District, 21 Idaho 98, 120 P. 461; Burnam v. Commonwealth, 228 Ky. 410, 15 S.W.2d 256; Ward v. Commonwealth, 228 Ky. 468, 15 S.W.2d 276; Guire v. Board of Commissioners, 178 N.C. 39, 100 S.E. 141; Woco Pep Co. of Montgomery County v. City of Montgomery, 213 Ala. 452, 105 So. 214; Venn v. State, 85 Tex.Crim. 151, 210 S.W. 534; Chicago, R. I. & P. Ry. Co. v. McClanahan, 151 Ark. 77, 235 S.W. 380; Mills v. Dawson, 197 Ky. 518, 247 S.W. 764. Likewise, the text in 59 Corpus Juris, section 552, reading on page 940, provides in part:
"* * * So where an act expressly repealing another act and providing a substitute therefore is found to be invalid, the repealing clause must also be held to be invalid, unless it shall appear that the legislature would have passed the repealing...
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