Walker v. Sears, No. 48428

CourtUnited States State Supreme Court of Iowa
Writing for the CourtSMITH
Citation61 N.W.2d 729,245 Iowa 262
PartiesWALKER v. SEARS et al.
Decision Date15 December 1953
Docket NumberNo. 48428

Page 729

61 N.W.2d 729
245 Iowa 262
WALKER

v.
SEARS et al.
No. 48428.
Supreme Court of Iowa.
Dec. 15, 1953.

Page 730

Thorkel E. Sondrol, Jr., Clear Lake, for appellant.

E. B. Stillman, Clear Lake, and Bannister, Carpenter, Ahlers & Cooney, Des Moines, for appellees.

SMITH, Justice.

In August, 1950, the requisite number of qualified persons petitioned the board of supervisors of Cerro Gordo County to establish Clear Lake Sanitary District under the provisions of Chapter 358, Iowa Code 1950, I.C.A. All parties agree a serious health and sanitation problem existed. Raw sewage was going into the lake resulting in pollution of neighborhood wells and of the lake itself, and endangering public health.

The board of supervisors held a public hearing under said code chapter on September 7, 1950, to consider objections and suggestions, to establish the boundaries of the proposed district and to call an election for October 19, 1950, 'for the purpose of submitting to the qualified voters resident within (its) boundaries * * * the question of organization and establishment of the proposed sanitary district as determined by said board of supervisors.' Code section 358.5.

The election was held and the proposal carried overwhelmingly. The board then called another election to be held December 8, 1950, to elect three district trustees, pursuant to code section 358.9. At this second election defendants Sears and Wolfram and one Thomas Gilruth were chosen to constitute the board of trustees.

This board later prepared and filed plat and schedule, forms of contract and plans and specifications, adopted resolution of necessity (January 29, 1952) and gave notice of a public hearing [245 Iowa 265] to be held March 5, 1952, on objections to the final adoption of said plans, specifications and forms of contract.

On March 9, 1952, trustee Gilruth resigned and on the same day the remaining members filled the resulting vacancy by appointing defendant Duesenberg, but there was no election of trustee at the next following biennial election. Code, section 358.9. At the March 5th hearing the trustees adopted a resolution ordering construction of the sanitary trunk line sewer and sewer treatment plant.

On July 26, 1952, the board of trustees authorized an issue of general obligation bonds in the sum of $609,739.54. Almost a year later (June 2, 1953) it advertised for bids on various parts of the work. On August 13, 1953, contracts were let to successful bidders aggregating $1,429,059.75.

Plaintiff filed his petition herein on September 19, 1953, alleging illegality of procedure in various respects and unconstitutionality of the entire chapter 358. Issue was joined, trial had, and on September 28 the trial court dismissed plaintiff's petition. He appeals.

I. It is first urged the District was not legally organized for that the original petition omitted a part of the boundary line description, thereby rendering same unintelligible, whereas subsection 1 of Code section 358.2 requires 'an intelligible description

Page 731

of the boundaries of the territory to be embraced in such district.' (Emphasis supplied.)

We find no indication this point was raised in the court below. It is not mentioned in the trial court's findings of fact or conclusions of law and is not even pleaded by plaintiff. The minutes of the relevant meetings of the board of supervisors and later minutes of the District after it was established were introduced by plaintiff but no discrepancy between the boundaries as described in the original petition and in the subsequent, corrected description was pointed out by plaintiff.

However the point may be implicit in the situation. A careful comparison does reveal there was one omission in the original description, corrected in all proceedings subsequent to the September 7th hearing.

The transcript shows in the cross-examination of one witness by defendant that there was some correction by the supervisors [245 Iowa 266] (at their September hearing) of an error in boundary description which did not change the territory. The witness testified: 'It was still the same territory.'

We are not furnished with any computation of the extent of area, if any, involved in the correction nor with sufficient data upon which to estimate it ourselves. We cannot say the original description was not 'intelligible.' There is no showing any different or additional property owners became interested by reason of the correction. Certainly plaintiff, nor anyone else, was prejudiced.

Code sections 358.2, 358.4 and 358.5 clearly contemplate and authorize such corrections. We are convinced there was no occasion for any further hearing to be held on the corrected boundaries, that...

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4 practice notes
  • State v. Olson, No. 49158
    • United States
    • United States State Supreme Court of Iowa
    • November 12, 1957
    ...1285, 1287, [249 Iowa 545] 206 N.W. 303; State v. Central States Electric Co., 238 Iowa 801, 818, 28 N.W.2d 457, 466; Walker v. Sears, 245 Iowa 262, 266-267, 61 N.W.2d 729, III. There is likewise no merit to defendant's contention the indictment Page 220 should have been set aside on the gr......
  • Ethyl Corp. v. E.P.A., Nos. 73-2205
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 14, 1976
    ...Barmore v. Robertson, 302 Ill. 422, 134 N.E. 815, 22 A.L.R. 835 (1922); Blue v. Beach, 155 Ind. 121, 56 N.E. 89 (1900); Walker v. Sears, 245 Iowa 262, 61 N.W.2d 729 (1953); State ex rel. Anderson v. Fadely, 180 Kan. 652, 308 P.2d 537, 548 (1957); Board of Health v. Kollman, 156 Ky. 351, 160......
  • Kasparek v. Johnson County Bd. of Health, No. 62420
    • United States
    • United States State Supreme Court of Iowa
    • February 20, 1980
    .... . a liberal construction (of implementing statutes) is justified, in view of the public good to be accomplished." Walker v. Sears, 245 Iowa 262, 266, 61 N.W.2d 729, 731 (1953), Quoting from Hengehold v. City of Covington, 108 Ky. 752, 756, 57 S.W. 495, 496 It would be an anomaly if t......
  • State v. Gardner, No. 48285
    • United States
    • United States State Supreme Court of Iowa
    • December 15, 1953
    ...defendant on trial was the identical person who was the defendant in the two prior cases, the attorney thereafter qualified his admission[245 Iowa 262] somewhat, and also raised the question of identity in his subsequent motions. The fingerprints and photographs were properly offered by the......
4 cases
  • State v. Olson, No. 49158
    • United States
    • United States State Supreme Court of Iowa
    • November 12, 1957
    ...1285, 1287, [249 Iowa 545] 206 N.W. 303; State v. Central States Electric Co., 238 Iowa 801, 818, 28 N.W.2d 457, 466; Walker v. Sears, 245 Iowa 262, 266-267, 61 N.W.2d 729, III. There is likewise no merit to defendant's contention the indictment Page 220 should have been set aside on the gr......
  • Ethyl Corp. v. E.P.A., Nos. 73-2205
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 14, 1976
    ...Barmore v. Robertson, 302 Ill. 422, 134 N.E. 815, 22 A.L.R. 835 (1922); Blue v. Beach, 155 Ind. 121, 56 N.E. 89 (1900); Walker v. Sears, 245 Iowa 262, 61 N.W.2d 729 (1953); State ex rel. Anderson v. Fadely, 180 Kan. 652, 308 P.2d 537, 548 (1957); Board of Health v. Kollman, 156 Ky. 351, 160......
  • Kasparek v. Johnson County Bd. of Health, No. 62420
    • United States
    • United States State Supreme Court of Iowa
    • February 20, 1980
    .... . a liberal construction (of implementing statutes) is justified, in view of the public good to be accomplished." Walker v. Sears, 245 Iowa 262, 266, 61 N.W.2d 729, 731 (1953), Quoting from Hengehold v. City of Covington, 108 Ky. 752, 756, 57 S.W. 495, 496 It would be an anomaly if t......
  • State v. Gardner, No. 48285
    • United States
    • United States State Supreme Court of Iowa
    • December 15, 1953
    ...defendant on trial was the identical person who was the defendant in the two prior cases, the attorney thereafter qualified his admission[245 Iowa 262] somewhat, and also raised the question of identity in his subsequent motions. The fingerprints and photographs were properly offered by the......

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