Walker v. Sears

• Decision Date: 15 December 1953
• Docket Number: No. 48428,48428
• Citation: 61 N.W.2d 729,245 Iowa 262
• Parties: WALKER v. SEARS et al.
• Court: Iowa Supreme Court

Page 729

61 N.W.2d 729

245 Iowa 262

WALKER v. SEARS et al.

No. 48428.

Supreme Court of Iowa.

Dec. 15, 1953.

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 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 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 (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 no jurisdictional question was involved, even had it been raised in the court below, and that the organization of the district was not invalidated.

The cases cited in the briefs are not particularly helpful to either side. They involve situations and statutes not analogous here. The present statute is new and has not heretofore been the subject of judicial scrutiny. The statutory provisions for organization of the district should be liberally construed in order to effectuate the purpose of its enactment. 25 Am.Jur., Health, § 8; 39 C.J.S., Health, § 5d. 'In determining the validity of the acts of such boards (of health and like commissions) and their officers, a liberal construction is justified, in view of the public good to be accomplished.' Hengehold v. City of Covington, 1900, 108 Ky. 752, 57 S.W. 495, 496, citing Inhabitants of Township of Perth Amboy v. Smith, 19 N.J.L. 52.

II. It is next argued all actions taken by the District after January 2, 1952, were rendered illegal by failure to fill the vacancy caused by Mr. Gilruth's March 3rd resignation at the next following biennial election. The validity of defendant Duesenberg's appointment is not questioned. See Code section 358.9. He became a de jure trustee March 3, 1952.

When no one was elected to succeed him at the biennial election that fall he continued to serve as a 'holdover.' It was not illegal for him to do so. Section 69.1, Iowa Code 1950, I.C.A.

The doctrine of de facto service in an official position is too well established to require discussion here. The acts of a de facto official are binding and may not be collaterally attacked as attempted here. Heyland v. Wayne Independent School Dist., 231 Iowa 1310, 1314, 4 N.W.2d 278, quoting Oliver v. City of Jersey City, 63 N.J.L. 634, 641, 44 A. 709, 712, 48 L.R.A., 412. See also Bremer County v. Schroeder, 200 Iowa 1285, 1287, 206 N.W. 303. The assignment is without merit.

III. It is argued the defendant District has no power or authority under Code chapter 358 to construct, operate and maintain lateral sewer lines, because Code section 358.1 does not expressly mention laterals. No case is cited which holds the power to organize a sanitary district with authority to construct and operate a sewer system would not imply and include the power to install laterals. See People ex rel. Bailey v. Downers Grove Sanitary District, 359 Ill. 601, 195 N.E. 465.

However we are not left to mere implication and inference. Code section 358.16 expressly authorizes 'all such adjuncts, additions, auxiliary improvements, and works as may be necessary or proper for accomplishment of the purposes intended'. And section 358.22 expressly authorizes payment for 'constructing, reconstructing, or extending any drains, sewers, or laterals, and other necessary adjuncts thereto'.

IV. Plaintiff contends the amendment of 1908 to Art. I, § 18, of our state Constitution, I.C.A., renders Code chapter 358 unconstitutional. That amendment authorizes legislation permitting...