Weiss v. Incorporated Town of Woodbine
| Decision Date | 09 January 1940 |
| Docket Number | 45089. |
| Citation | 289 N.W. 469,228 Iowa 1 |
| Parties | WEISS et al. v. INCORPORATED TOWN OF WOODBINE et al. |
| Court | Iowa Supreme Court |
Appeal from District Court, Harrison County; John A. Murray, Judge.
Suit to enjoin the construction of a municipal electric light and power plant on the grounds that the proceedings in connection therewith are void. Defendants' answer was a general denial. The court dismissed the suit. Plaintiffs appeal.
Reversed.
Lee & Sheldahl, of Lincoln, Neb., and Frank P. Brennan, of Avoca for appellants.
Geo. A Rice, of Mapleton, and Wm. L. Hassett, of Des Moines, for appellees.
This is a suit in equity brought by the Iowa-Nebraska Light and Power Company, together with two individual citizens and taxpayers, to enjoin the defendants, Incorporated Town of Woodbine, the town council, and Fairbanks-Morse & Company, the successful bidder, from constructing an electric light and power distribution system on the theory that the proceedings of the town, pursuant to which the contract for such construction was awarded, are invalid. Numerous grounds are asserted in the petition, as amended. The answer was a general denial. Testimony was introduced and the matter being fully submitted, the court entered a decree finding generally in favor of the defendants and dismissing the petition, as amended. Plaintiffs appeal to this court and assert nine propositions as grounds for reversal.
Appellants' first three propositions are based upon the contention that the ballot used to submit the proposition to the voters of the town was insufficient to advise the voters of the type of contract contemplated by the town, and eventually awarded to the appellee, Fairbanks-Morse & Company. The question contained in the ballot is as follows: " Shall the Town of Woodbine, Harrison County, Iowa, establish, erect, maintain, and operate, within or without its corporate limits, an electric light and power plant with all the necessary poles, wires, machinery, apparatus and other requisites of said plant; the maximum amount which may be expended for the establishment, construction, or acquisition of such plant shall be $115,000.00; said plant shall be paid for solely out of the future earnings of said plant, and as provided by Sections 6134-d1 to 6134-d7, inclusive, of the 1935 Code of Iowa?"
As the election resulted in an affirmative vote on the above proposition, notice to bidders was given in which the bidders were advised as follows: " Said improvement being constructed under the authority granted the Municipality by Chapter 312 of the Code of Iowa for 1935, and more particularly by Sections 6134-d1 to 6134-d7, inclusive, and including Sections 6134-f1, 6134-f2 and 6134-f3."
The contract actually awarded to appellee, Fairbanks-Morse & Company, provided for the issuance of revenue bonds pursuant to Sections 6134-f1 to 6134-f3, inclusive, of the Code. It is the contention of appellants that the ballot was only sufficient to advise the voters that the town intended to proceed pursuant to the " d" sections, and was insufficient to advise the voters that the town intended to proceed pursuant to Sections 6134-f1 to 6134-f3, inclusive. We find no merit in this contention.
The statute, which is now known as Sections 6134-f1 to 6134-f3, inclusive, was enacted as Chapter 74 of the Acts of the 45th Extra G. A., " An Act amending section sixty-one hundred thirty-four-d one (6134-d1), Code 1931." From a legal standpoint, the sections of this chapter of the session laws which have now been identified as the " f" sections following Section 6134-d1 of the Code of 1935, are an amendment to Section 6134-d1 of the Code of 1931, and, therefore, are a part of Sections 6134-d1 to 6134-d7 of the Code of 1935. Such holding seems to be apparent when we consider the holding of this court in the case of Abbott v. Iowa City, 224 Iowa 698, 277 N.W. 437.The ballot which was submitted to the voters of Iowa City is set out in the opinion, 224 Iowa at page 708, 277 N.W. at page 442, as follows:
" Shall the City of Iowa City, Iowa, establish, erect, extend, maintain and operate within or without its corporate limits, an electric light and power plant, with all the necessary poles, wire, machinery, apparatus and other requisites of said plant; the maximum amount which may be expended for the establishment, construction, or acquisition of such plant shall be $917,000 to be paid for out of the future earnings of said plant, and as provided by sections 6134-d1 to 6134-d7, inclusive, of the Code of Iowa, 1931, as amended by * * * chap. 74-45 G. A. * * * 45th General Assembly, Special Session?"
While the exact proposition now contended for by appellants was not urged upon this court in that case, a reading of our opinion demonstrates that this court accepted that ballot as sufficient to advise the voters of the statutes under which the city was undertaking to proceed. We can see no valid distinction between the reference in the Abbott case to " sections 6134-d1 to 6134-d7, inclusive, of the Code of Iowa, 1931, as amended by * * * chap. 74-45 G. A." and the ballot here presented which refers to " Sections 6134-d1 to 6134-d7, inclusive of the 1935 Code of Iowa." It seems to us that, as a matter of law, both references are to the same statutes.
Appellants argue, however, that a voter would be misled by the ballot in that he would naturally assume that the ballot referred only to the " d" sections and the fact that the town secretly intended to invoke the " f" sections was a fraud upon the voters.
Even a casual examination of the Code of 1935 demonstrates that, if one undertakes to read from Section 6134-d1 to Section 6134-d7, inclusive, after reading Section 6134-d1, he is confronted with the " f" sections which are inserted between Section 6134-d1 and Section 6134-d2. This insertion was made by the code editor in view of the fact that the " f" sections were enacted as an amendment to Section 6134-d1. Also, the sub-head in the code appearing after Section 6134 proper, is " Payment From Earnings" . The " f" sections, as well as the " d" sections, obviously pertain to this subject. Under Section 6134-d1, payment may be made from future earnings and the town is authorized to pledge the property and the earnings of the plant as security for the payment of the purchase price. Under Section 6134-f1, the cost may be defrayed by the issuance of negotiable interest bearing bonds, payable from and secured by the net earnings of the plant and may also be secured by the pledge of the property purchased. The " f" sections refer to the same subject-matter as the " d" sections, namely, payment from earnings. If a voter examined the 1935 Code and the ballot, which stated, " Said plant shall be paid for solely out of the future earnings of said plant," he would naturally conclude that the language " and as provided by Sections 6134-d1 to 6134-d7, inclusive, of the 1935 Code of Iowa" included all of the statutes there appearing in the 1935 Code, under the heading, " Payment From Earnings", and that it included the " f" sections as well as the " d" sections.
Numerous authorities have been cited to us by the parties to this appeal. We have carefully examined them. They present many interesting propositions. However, it would unduly prolong this opinion to specifically refer to such cases. The only case cited, which appears to be directly in point, is the Abbott case above referred to. We are satisfied from examining all of the cases relied upon that the position taken by us in the Abbott case clearly warrants, if not compels, us to now hold that appellants' objection to the ballot is without merit.
Appellants' fourth proposition is based upon the contention that Section 6134-f1 of the Code of 1935 is unconstitutional and void because it contravenes the provisions of Section 29 of Article III of the Constitution of the State of Iowa, which provides:
The title of Chapter 74 of the Acts of the 45th Extra General Assembly reads as follows: " An Act amending section sixty-one hundred thirty-four-d one (6134-d1), Code, 1931, and providing for the issuance by municipalities of negotiable revenue bonds payable only out of the net earnings of municipally owned public utilities, providing the security for the payment of such bonds and the rate of interest and form of such bonds; providing for the delivery or sale of such bonds and that the same may be used as security for money borrowed to pay the costs of such improvement."
Appellants' contention is that Section 6134-f1 constitutes an attempt to amend Sections 1172, 1175 and 1179 of the Code without giving expression to such intention in the title. Said statutes provide as follows:
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