Windsor v. City of Des Moines

• Decision Date: 16 January 1900
• Citation: 110 Iowa 175,81 N.W. 476
• Parties: WINDSOR v. CITY OF DES MOINES ET AL.
• Court: Iowa Supreme Court

110 Iowa 175

81 N.W. 476

WINDSOR

v.CITY OF DES MOINES ET AL.

Supreme Court of Iowa.

Jan. 16, 1900.

Appeal from district court, Polk county; Charles A. Bishop, Judge.

August 3, 1897, the city of Des Moines entered into two separate contracts,--one with the McCaskey & Holcomb Company, for the construction of an electric light plant, to be owned by the city, and for its operation by the company for the term of two years; the other with the trustees of what is known as the “Sibley Estate,” for the purchase of several lots on which to erect the electric light plant. After the contracts were entered into, but before anything was done thereunder, plaintiff commenced this suit in equity, asking a decree canceling said contracts, and assailing the validity of a tax levied, after the making of the contracts, for the purpose of meeting the obligations imposed thereby. Plaintiff claims that the contracts were and are illegal, because not authorized by vote of the people of the municipality, and because they created an indebtedness in excess of the constitutional limit. The trial court sustained the plaintiff's contention, and defendants appeal. Affirmed.I. M. Earle and J. Edward Mershon, for appellants.

Cummins, Hewitt & Wright and Connor & Weaver, for appellee.

DEEMER, J.

Prior to the year A. D. 1897, there had been in operation in the city of Des Moines three private electric light plants. In the early part of that year the city authorities concluded, however, to construct a fourth plant at public expense. Pursuant to this purpose, the board of public works of the city published proposals for the construction of such works. In response to these proposals, the McCaskey & Holcomb Company submitted three separate bids or propositions for the erection of a plant. Shortly after the submission of these bids, the mayor of the city issued a proclamation for a special election, and fixed the 17th day of May, 1897, as the time for holding it. The following is a copy of the form of ballot used at that election:

“Shall the following proposition be adopted: First. Shall the city council of the city of Des Moines, Iowa, authorize the McCaskey & Holcomb Company to construct an electric light plant, and erect the necessary wire and apparatus to furnish light to the city and its streets?

[/] For electric light plant.

[/] Against electric light plant.

Shall the following proposition be adopted: Second. Shall an electric light plant, with necessary wires and apparatus, be established by the city of Des Moines?

[/] For electric light plant.

[/] Against electric light plant.”

At the election, 3,756 votes were cast in favor of the electric light plant on both propositions, and 1,300 were registered in the negative. Only 31 votes were cast for the first proposition alone, and none for the second. The trial court held in favor of the plaintiff's contention that these propositions were inconsistent and contradictory, and that, if this be not true, the city council was authorized to do either the one or the other of the two things authorized; thus leaving it to that body to do as it pleased, and grant a franchise or not as it saw fit. The trial court also held, in effect, that the bids made by the McCaskey Company did not correspond with the published proposals. For these reasons, it entered a decree for plaintiff, adjudging the election, and the contracts entered into pursuant thereto, void, and annulled the tax ordered for the purpose of meeting the obligations created by the contracts. After the decree had been entered, the legislature passed a curative act, which will be hereinafter more particularly referred to. After that act was passed, defendants asked for a vacation and modification of the decree. This request was denied, but defendants were given leave to file a petition to set aside and modify the decree, if they were so advised. Defendants now rely on this curative act as a defense to plaintiff's claims that the proposal for bids and the bids of the McCaskey Company, and the proposition submitted to the electors at the special election, did not conform with law; while plaintiff contends that the curative act cannot be considered on this appeal, that, if considered, it did not cover all the defects in the proceedings leading up to the contracts sought to be annulled, and that, in any event, the invalidity of the contract for the purchase of land and of the tax levied to pay for the operation of the plant was not affected.

The first question for solution relates to the validity and scope of the act, and its effect on pending litigation. “A curative act may cure or legalize any act which the general assembly could, as an original question, have authorized.” Huff v. Cook, 44 Iowa, 641;City of Clinton v. Walliker, 98 Iowa, 655, 68 N. W. 431, and cases cited. And a large discretion is vested with the legislature in determining when such special laws should be passed. Chicago, R. I. & P. Ry. Co. v. Independent Dist. of Avoca, 99 Iowa, 556, 68 N. W. 881. It is no objection to such legislation that it was passed after action is commenced disputing the validity of the act. As a rule, every case must be determined on the law as it stands at the time judgment is pronounced. Of course, the legislature cannot impair the obligation of contracts, nor by subsequent legislation disturb vested rights. But the bringing of suit vests no right in a particular decision. Huff v. Cook, 44 Iowa, 639. This is a suit in equity, and is triable de novo in this court. Until final decree is passed, there is no vested right to be disturbed, and the case must be determined on the law as it now stands. These are elementary propositions, supported by the following, among other, authorities. Land Co. v. Soper, 39 Iowa, 112; Huff v. Cook, supra; Association v. Heidt (Iowa) 77 N. W. 1052, 43 L. R. A. 689; Same v. Curtis (Iowa) 78 N. W. 208.

But it is argued that the curative act does not cover all the defects in the proceedings, and that the contract should be annulled because of certain defects not mentioned in the curative act. While the preamble refers to certain specified defects, yet the act itself says that the contract made with the McCaskey & Holcomb Company, for the construction of the electric light plant, and the operation and maintenance thereof, “is hereby legalized * * * as fully as though all the requirements of the law leading up to, and necessary thereto, had been followed in every respect and particular, and on full compliance with the law.” See Acts 27th Gen. Assem. c. 184. While the preamble may be considered in arriving at the legislative intent, yet if, in reading the enacting part, there is no ambiguity or doubt as to its scope or meaning, there should be no recourse either to the title or to the preamble in order to discover a different meaning. Suth. St. Const. § 212, and cases cited. As a general rule, the preamble may extend, but cannot restrain, the effect of the enacting clause. Id. § 213. It is clear, we think, that all defects in the preliminary proceedings incident to the making of the contract were cured by the act hitherto quoted.

But it does not follow that the contract is valid. Attack is made on it because it created a debt in excess of the constitutional limitation.That limitation is in these words: “No county or other political or municipal corporation shall be allowed to become indebted in any manner or for any purpose to an amount in the aggregate exceeding five per centum on the value of the taxable property within such county or corporation to be ascertained by the last state and county tax lists previous to the incurring of such indebtedness.” Const. art. 11, § 3. The assessed valuation of the taxable property within the corporate limits of the city of Des Moines, as shown by the state and county tax lists of the year 1896, was $16,475,260. The authorized debt was therefore $823,763. Plaintiff contends that the indebtedness is limited to 5 per centum of the property subject to taxation for city purposes. We cannot agree with him in this contention. The state and county tax lists include all property in the corporate limits, whether taxable for city purposes or not. Todd v. City of Laurens (S. C.) 26 S. E. 682. At the time the contract in question was entered into, the bonded debt of the city was $769,000. It was indebted on outstanding warrants in the sum of $85,273.07. It had in cash on hand, belonging to 8 or 10 different funds, $68,112.70. Taking from this last amount special funds which could not be used for the payment of outstanding warrants, and we find but $47,729.28 in available cash on hand. The officers testify, however, that no warrants were drawn, unless there was an appropriation to meet them, and that as soon as the appropriation was exhausted no more warrants were drawn. As this evidence is uncontradicted, we must accept it as true, and, if true, it eliminates the outstanding warrants. The city had also entered into a contract to purchase a new cemetery, in which it had the right to acquire title to a tract of land for cemetery purposes on payment of the sum of $35,000, $4,000 of which amount was paid, and the city had the option to quit paying at any time, and to take title to such of the property as it had in fact paid for. Whether or not it should pay anything further on this contract was entirely optional with the city, and we do not think it should be treated as creating a debt. Burnham v. City of Milwaukee (Wis.) 73 N. W. 1018. But it also appears that there were judgments against the city, which were unpaid on August 3, 1897, amounting to something over $14,692. In addition to this, the city had also entered into a bridge contract providing for the grading of approaches to what is known as the “Fifth Street Bridge” at an expense of $19,100, and had also entered into various grading contracts imposing liabilities on the city amounting to something over $13,000. It is contended by ap...