Town of Mechanicsville v. State Appeal Bd.

• Decision Date: 17 October 1961
• Docket Number: No. 50486,50486
• Citation: 111 N.W.2d 317,253 Iowa 517
• Parties: TOWN OF MECHANICSVILLE, a Municipal Corporation, Appellee, v. STATE APPEAL BOARD of the State of Iowa, and Marvin R. Selden, Jr., Chairman, and M. L. Abrahamson and C. B. Akers, Members of the State Appeal Board, Defendants, and Mrs. Helen Simpson, Mrs. Beula East, Mrs. Merle O'Connor, Joe Cruse, and Mrs. Velma E. Taylor, Intervenors-Appellants.
• Court: Iowa Supreme Court

Page 317

111 N.W.2d 317

253 Iowa 517

TOWN OF MECHANICSVILLE, a Municipal Corporation, Appellee, v. STATE APPEAL BOARD of the State of Iowa, and Marvin R. Selden, Jr., Chairman, and M. L. Abrahamson and C. B. Akers, Members of the State Appeal Board, Defendants and Mrs. Helen Simpson, Mrs. Beula East, Mrs. Merle O'Connor, Joe Cruse, and Mrs. Velma E. Taylor, Intervenors-Appellants.

No. 50486.

Supreme Court of Iowa.

Oct. 17, 1961.

Rees, Remley & Heiserman, and James T. Remley, Anamosa, for intervenors-appeallants.

Sebesta & Kuehnle, Mechanicsville, and Brunk, Janss & Dreher, Des Moines, for appellee.

Evan L. Hultman, Atty. Gen., Oscar Strauss and Wilbur Bump, Asst. Attys. Gen., for State Appeal Board and its members, defendants not appearing.

GARFIELD, Chief Justice.

The question presented is whether, as the district court held, the state appeal board (herein called 'board') exceeded its jurisdiction in disapproving proposed street improvements in plaintiff Town of Mechanicsville. From decree annulling the board's decision certain taxpayers in the town who intervened in the certiorari action in the district court have appealed to us.

A resolution of necessity was introduced in the Mechanicsville town council providing for paving many of its streets, together with curb and gutter and storm sewer. It provided that so much of the cost of the improvements as can under the law be assessed to abutting and adjacent property will be so assessed. Any deficiency between the amount which may be so assessed and the cost of the improvements is to be paid from the sale of general obligation bonds.

Objections to the proposal were filed with the council by numerous property owners and taxpayers. The council deleted about 11 blocks (or perhaps 13) from the paving project, overruled the objections and passed the resolution of necessity as thus changed. Subsequently construction was ordered, plans and specifications were adopted and a contract was made with the lowest bidder for $270,323. The other nine bids were from $274,997 to $326,455. The engineer had estimated the cost at $281,165. In addition to the amount of the contract the town has paid, or obligated itself for, other costs, not including attorney fees, which total $20,686, including about $19,550 to engineers.

Prior to the opening of the bids the council heard and overruled objections to the plans, specifications and form of contract. Within proper time some of the objectors appealed from the council's decision to the state appeal board, purporting to act under chapter 23, Code 1958 (section 23.4), I.C.A. Pursuant to notice given by the board it held a hearing at Mechanicsville on April 19, 1961.

The board found 'the proposed method of financing the improvement results in inequitable, excessive and unlawful burdens upon the benefited property and, therefore, is not in the best interests of the town and the taxpayers therein.' The board held the improvement as planned should not be completed or approved, the appeal of the objectors was sustained and their objections upheld in part.

The town then brought this action in certiorari to annul the board's decision as in excess of its jurisdiction. As indicated at the outset, five of the objecting taxpayers intervened in the action on the side of defendant board. The case was submitted largely on the records and files of the town. Some oral evidence was taken, mainly in an effort to show the town questioned the board's jurisdiction prior to the hearing at Mechanicsville. The district court held the proceedings and contract for the improvements in question are entirely outside the purview and purpose of chapter 23, Code 1958, I.C.A., and, as stated, that the board exceeded its jurisdiction in disapproving them.

The town's petition in certiorari alleges, in substance, the board was without jurisdiction to render its decision and it should be set aside for these reasons:

1) The board has no jurisdiction of a street improvement project to be paid for by special assessments against benefited property, the remedy of any objector being to appeal to the district court under Code, section 391.88, I.C.A.

2) The question whether a public improvement to be paid for by special assessments is to be made is a legislative one within the exclusive province of the town council and is not subject to review by the board.

3) The matter of alleged excessive cost to the property owners of this special assessment project is within the exclusive province of the district court pursuant to timely appeal under Code, sections 391.88391.91, I.C.A.

4) The provisions of chapter 408, Codes 1946 and 1950, I.C.A., authorizing appeals to the board in matters relating to issuance of bonds thereunder were repealed by chapter 194, Laws 55th General Assembly, in 1953 and cities and towns were authorized to issue the general obligation bonds it proposes to issue.

5) The alleged detriment to the benefited property is not a legally sufficient ground upon which to base the board's disapproval of these improvements.

The single error intervenors-appellants assign here is that the court erred in holding the board did not have jurisdiction of the controversy.

I. Appellants concede the board is without jurisdiction to disapprove a contract for a street improvement to be paid for wholly by special assessments against adjacent property. In turn the town concedes that if this entire improvement were to be financed by general obligation bonds the board would have jurisdiction to disapprove the contract.

The town proposes to pay for this improvement in large part by special assessments but a substantial part of the cost is to be paid by the sale of general obligation bonds. The town says this part will not exceed $62,729. Appellants claim the amount is somewhat larger. In any event at least 20 per cent of the total cost will be paid by funds of the town. The amount to be so paid is about three fourths of the legal limit of five per cent (which totals $84,691) for which the town could become indebted. Iowa Constitution, Article XI, section 3 I.C.A.; Code, section 407.2, I.C.A.

We think Code, chapter 23, I.C.A. confers upon the board jurisdiction to disapprove such a contract as we have here, to be paid for in substantial part by funds of the town.

Section 23.1 provides: 'The words 'public improvement' as used in this chapter shall mean any building or other construction work to be paid for in whole or in part by the use of funds of any municipality.'

The town's position as indicated in its certiorari petition and its concession above referred to ignores the words 'or in part' found in the statute. We cannot read these words out of the law. A cardinal rule of statutory construction is that, if reasonably possible, effect should be given every part of a statute. Ashby v. School Township of Liberty, 250 Iowa 1201, 1213-1215, 98 N.W.2d 848, 858, and citations. See also Iowa Mutual Tornado Ins. Ass'n v. Fischer, 245 Iowa 951, 956, 65 N.W.2d 162, 165, and citations.

Other provisions of chapter 23 are that before a municipality shall enter into a contract for a public improvement to cost $5000 or more the governing body shall give notice of a hearing thereon (section 23.2). Any person interested may file objections to the proposed contract for, or cost of, the improvement which the governing body shall hear and decide (23.3). Interested objectors may appeal from the decision (of the town council here) to the appeal board (23.4).

Section 23.7 provides in part: '* * * The appeal board shall examine, with the aid of competent assistants, the entire record, and if it shall find that the form of contract is suitable for the improvement proposed, that the improvement and the method of providing for payment therefor is for the best interests of the municipality and the taxpayers therein, and that such improvements can be made within the estimates therefor, it shall approve the same. Otherwise, it may reject the same as a whole or, * * *.'

Section 23.9 states: 'If an appeal is taken, no contract for public improvements shall be vaild unless the same is finally approved by the appeal board.'

Language in two recent opinions supports our conclusion. In Husson v. City of Oskaloosa, 240 Iowa 681, 689, 37 N.W.2d 310, 315, property owners sought to enjoin the city and contractor from proceeding with proposed street improvements. Cost of one improvement was to be paid through special assessments on adjacent property 'to the extent that the law permits, but it developed that approximately one-half was to be paid by the city * * *' (at page 684 of 240 Iowa, at page 312 of 37 N.W.2d). We held injunctive relief against this improvement was properly denied, giving as a reason that the objectors did not object to it before the city council and appeal to the appeal board from the council's action. The opinion states:

'* * * The appellants did not appear to object to this particular project but served notice on the city officials of the action here reviewed.

'It is shown that no appeal has been taken from the hearing had and action taken by the city council as provided in Section 23.4, 1946 Code, I.C.A. This particular section gives interested objectors the right to appeal to an appeal board provided by statute where claimed interested persons are affected. Under the record we hold that the appellants are in no position to now object to the proposed reinforced concrete paving improvement.'

Dingman v. City of Council Bluffs, 249 Iowa 1121, 1132, 90 N.W.2d 742, 750, was an action for declaratory judgment construing chapter 408A, Code 1954, I.C.A. The principal question was whether general obligation bonds may be issued to pay for a storm sewer and pumping station without approval by the electors at a special election. We held the bonds could be so issued because the statutory provisions for an election were made inapplicable by section 408A.7 to bonds issued in...