Town of Grundy Center v. Marion
| Decision Date | 13 January 1942 |
| Docket Number | 45541. |
| Citation | 1 N.W.2d 677,231 Iowa 425 |
| Parties | TOWN OF GRUNDY CENTER v. MARION. |
| Court | Iowa Supreme Court |
W. L. Mooty, of Grundy Center, DeWolf & DeWolf of Reinbeck, and McCoy & Beecher, of Waterloo, for appellant.
H A. Willoughby, of Grundy Center, and Swisher, Cohrt & Gillilland, of Waterloo, for appellee.
Revised Ordinance No. 46 reads in part as follows:
etc.
The petition alleged defendant, in violation of the ordinance, was conducting his business on Lots 8, 10, 11, Block 11, Copps Addition to the Town of Grundy Center, Iowa, within 300 feet of buildings used for business and residential purposes; that the maintenance of said junk business, and depositing and storing junk, upon the premises was offensive and unhealthful, and repugnant to the morals, comfort and convenience of the plaintiff and the inhabitants thereof; that the plaintiff has no adequate, speedy and complete remedy at law.
The prayer asked that defendant be enjoined from such violation and for a mandatory injunction requiring defendant to remove the junk stored on said premises to some place within the city which is 300 feet or more from any buildings used for business or residential purposes. Relief was granted to the plaintiff as prayed by decree entered in the cause.
The street frontage of defendant's lots is 376 feet and the depth is 100 feet. At the time of the commencement of this suit defendant had purchased and deposited on his property old iron, old machinery, old automobiles, broken pieces of machinery, old tires, broken up cars, old auto bodies, rags, old stoves, old upholstery, waste material and stuff of all kinds and junk. There is a fence on the west and south side of the property. There is evidence that the junk yard is unsightly; constitutes a breeding place for rats; that burning of upholstery, old tires and generators produces an offensive, heavy, black smoke and that it has a detrimental effect on property values. There were 50 old cars on the premises that had not been broken down or wrecked. Defendant's business aggregated from $25,000 to $30,000 per year. Though denied by defendant, the fact that he is carrying on the business of a junk dealer is too thoroughly established by the record to require discussion.
There are ten or twelve business and residential properties within 300 feet of defendant's junk yard.
I. Appellant's first assignment of error is that the ordinance had not been duly adopted and was not in force and effect at the time in question. It was stipulated in the lower court that the only objection made by appellant to the ordinance was that it was not published as provided by law.
Section 5721.1, 1939 Code, reads:
We set out the material portions of the notice of revision of city ordinances published by the municipality:
Then follow similar references to 66 revised ordinances. The reference to revised Ordinance No. 46 is:
This notice was published once each week for three consecutive weeks in a newspaper published in Grundy Center and a type-written copy of the revision was filed in the office of the town clerk.
Appellant claims the ordinance was not in effect at the time in question because (1) the notice of revision of the ordinance was not signed and (2) it does not appear that at the time of the adoption of the ordinance there was an ordinance relating to junk dealers and therefore Ordinance No. 46 was not a revised ordinance.
Neither of these contentions can be sustained.
While notices should be signed, the purpose of a signature is to authenticate the instrument or writing and give notice of its source, and it is well settled that, unless otherwise especially provided, it is not necessary that the signature be placed at the foot of the instrument. 58 C.J. 724, and see Blair v. Hemphill, 111 Iowa 226, 82 N.W. 501. The city clerk signed the published notice at the foot of the proceedings of the council enumerating the ordinances that were revised and just prior to the designation of the revised ordinances by number and title. It must have been plain to anyone reading the published notice that it emanated from and was published by the authority of the city council. We hold that the location of the signature of the clerk on the notice was sufficient to constitute a valid signing of the notice.
Ordinance No. 46 was recorded in a book containing the revised ordinances of the town of Grundy Center. Its title is "Revised Ordinance No. 46" and was adopted and published as a revising ordinance. The Mayor of Grundy Center, a witness for appellant, was asked whether Ordinance No. 46 revised a former ordinance. He replied that he had a faint impression that there was another ordinance with reference to handling junk.
Nothing further appears in the record on this issue. Our conclusion from this record is that Ordinance No. 46 is a revised ordinance and complies with all of the provisions of section 5721.1.
Section 5719, 1939 Code, refers to original ordinances and provides that they must be published in a newspaper. We think it is plain that section 5719 is not applicable to revised ordinances and that a publication of a revised ordinance in compliance with section 5721.1 is sufficient. We find the ordinance was published as required by the latter section.
II. Another assignment by appellant reads:
We cannot agree with appellant that Ordinance No. 46 is a penal ordinance and nothing more and that the penalty prescribed is an adequate remedy at law. Though it is of course true that a court of equity will not enjoin the commission of a crime, the main purpose of this ordinance was not to create a crime and provide a penalty for its commission. It is regulatory in nature and its primary purpose is to promote the public interest and welfare, the penal provision being incidental to the purpose of the city in passing the ordinance.
In State v Fray, 214 Iowa 53, 241 N.W. 663, 664, 81 A.L.R. 286, we held that a court of equity will enjoin the violation of the provisions of a statute enacted for the public interest though the violation is made a misdemeanor. The opinion quotes from the case of New Orleans v. Liberty Shop, 157 La. 26, 101 So. 798, 40 A.L.R. 1136, 1149: ...
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Town of Grundy Ctr. v. Marion
...231 Iowa 4251 N.W.2d 677TOWN OF GRUNDY CENTERv.MARION.No. 45541.Supreme Court of Iowa.Jan. 13, Appeal from District Court, Grundy County; Geo. W. Wood, Judge. A suit to enjoin defendant from engaging in the business of junk dealer in Grundy Center in violation of Revised Ordinance No. 46 an......