Witter v. Bd. of Sup'rs of Polk Cnty.

• Decision Date: 26 October 1900
• Citation: 83 N.W. 1041,112 Iowa 380
• Parties: WITTER ET AL. v. BOARD OF SUP'RS OF POLK COUNTY ET AL. KRAETSCH ET AL. v. BOARD OF SUP'RS OF POLK COUNTY (WITTER ET AL., INTERVENERS).
• Court: Iowa Supreme Court

112 Iowa 380

83 N.W. 1041

WITTER ET AL.

v.BOARD OF SUP'RS OF POLK COUNTY ET AL.

KRAETSCH ET AL.

v.BOARD OF SUP'RS OF POLK COUNTY (WITTER ET AL., INTERVENERS).

Supreme Court of Iowa.

Oct. 26, 1900.

Cross appeals from district court, Polk county; S. F. Prouty, Judge.

At the general election in 1898, by a vote of the electors of Polk county, the board of supervisors was authorized to build a new court house for the county, and to issue bonds to raise the funds therefor, and to levy a tax to pay said bonds. A change of location of the court house within the city of Des Moines was afterwards agitated, and at a special election held January 25, 1899, the board of supervisors submitted to the voters of the county the following propositions. “Shall the board of supervisors of Polk county purchase a site on the west bank of the Des Moines river, between Court avenue and Grand avenue, and east of West Second street, in the city of Des Moines, Iowa, at a cost not to exceed $100,000, upon which to erect a new court house; and shall the board of supervisors issue bonds of Polk county, Iowa, for the purpose of securing money with which to purchase such site; and shall the board of supervisors be authorized to levy an annual tax of not to exceed one-quarter of one mill on the dollar of the assessed valuation of the taxable property within Polk county for a period not exceeding twenty years, for the purpose of paying the principal and interest?” After this election was held, the following proceedings were instituted, as related by counsel, which we are glad to avail ourselves of in stating the present situation of affairs: Owing to the alleged informality in some of the returns, the board of supervisors refused to declare that the propositions had been adopted, and a mandamus suit was instituted, the title being, “The State of Iowa ex rel. John McLellan, County Attorney, vs. The Board of Supervisors of Polk County.” The object of this suit was to require a canvass of the returns and a declaration of the result. Under an agreement of the parties, the case was tried at the January term, 1899, and a judgment rendered which directed a canvass of the vote at the special election in accordance with the requirements of the law. The defendants have not appealed from this judgment. Second. At about the same time Paul Kraetsch, a property owner and taxpayer, brought his suit for an injunction against the board of supervisors, the object of which was to reach exactly the same end sought in the mandamus proceeding, viz. the ascertainment of the result of the special election. In this suit David F. Witter and Charles O. Nourse filed a petition of intervention, making the plaintiff in the suit as well as the board of supervisors defendants, and which, in substance, charged that the statute did not authorize the county to issue negotiable bonds or borrow money under any circumstances for the purpose of procuring the funds necessary to purchase a new site. Issues were joined upon the petition of intervention, and by stipulation it became an independent petition in equity, and was heard as such. A final decree was rendered, which held that there was no authority in the law under which a county could issue bonds or borrow money for the purpose of buying a site for a court house, and the board was enjoined from so doing. The board of supervisors and Kraetsch appealed from this decree. Subsequent to their intervention in the Kraetsch case, the plaintiffs David F. Witter and C. O. Nourse brought the second of the two suits shown in the title hereto, and issues were so framed in it as to present the following questions: (1) Did the special election of January 25, 1899, confer upon the board of supervisors the authority to buy a new site, not exceeding in price $100,000? (2) Did the special election of January 25, 1899, confer upon the board of supervisors authority to issue nonnegotiable warrants, and with such warrants pay for a new site, and to levy a tax for the purpose of accumulating a fund with which to redeem the warrants? Upon the final hearing the district court decided: First, that the special election did not authorize the board to buy a new site with warrants to be redeemed from the proceeds of a special tax levied through a series of years; second, that the special election did authorize the board to buy a new site, not exceeding $100,000 in price, and pay for the same with the proceeds of the present site, or with any other funds that might be in the county treasury not otherwise appropriated. From the decree so rendered both parties have appealed. The plaintiffs insist that the special election of January 25, 1899, is absolutely void, and conferred no authority of any kind upon the board, and that the court erred in holding that the board could legally buy a new site costing more than $2,000, and pay for the same with the proceeds of the sale of the present site, or with other funds that might be available for such purpose. On the other hand, the board of supervisors insists that the court erred in holding that the special election did not empower the board to buy a new site, and pay for it with warrants upon the treasury; the warrants to be payable only from the proceeds of a tax of one-fourth of a mill levied only upon the taxable property of Polk county, the levy to continue until the warrants were redeemed, but in no event to continue more than 20 years. It was agreed by stipulation that the appeals should be consolidated, and the cases submitted together, which was done. After these cases were submitted at the January, 1900, term of this court, the following legalizing act respecting the matters in controversy was passed by the general assembly:

“Whereas there was on the 25th day of January, 1899, held in the county of Polk, and state of Iowa, a special election there was submitted to the voters of this county the following propositions: Shall the board of supervisors of Polk county, Iowa, purchase a site on the west bank of the Des Moines river between Court avenue and Grand avenue, and east of West Second street, in the City of Des Moines, Iowa, at a cost not to exceed one hundred thousand (100,000) dollars, upon which to erect a new court house; and, shall the board of supervisors issue bonds of Polk county, Iowa, for the purpose of securing money with which to purchase the site; and shall the board of supervisors be authorized to levy an annual tax of not to exceed one quarter of one mill on the dollar on the assessed valuation of the taxable property within Polk county, Iowa, for a period of not exceeding twenty (20) years, for the purpose of paying the principal and interest of said bonds?” and whereas, at the said special election the said propositions were voted for by a majority of all the persons voting for and against the same; and whereas, it has been declared by the district court of Polk county, Iowa, and by the board of supervisors of said county, that the said propositions were adopted at said election; and whereas, doubts have arisen respecting the legality and regularity of the proceedings of the board of supervisors leading up to said election, and respecting the legality and regularity of the notice of said election, and respecting the legality and regularity of the proposition submitted at said election, and respecting the authority vested in said board of supervisors by said election: Be it enacted by the general assembly of the state of Iowa:

Section 1. That the resolutions and proceedings of the board of supervisors of Polk county, Iowa, concerning and providing for said special election of January 25, 1899, the notice of the said election and the propositions submitted thereat, be and the same are hereby legalized, and the adoption of the said propositions by the voters of said county, as hereinbefore recited, shall have the following force and effect: First. To authorize the board of supervisors of Polk county, Iowa, to purchase a site on the west bank of the Des Moines river between Court avenue and Grand avenue and east of West Second street in the city of Des Moines, Iowa, at a cost not to exceed one hundred thousand (100,000) dollars, upon which to erect a new court house, and to pay for the same with any money in the treasury of said county, not otherwise appropriated, whether the proceeds of the sale of the real property now occupied by the court house or of ordinary taxation. Second. To levy a tax of one-quarter of one mill upon the assessed valuation of the taxable property within Polk county, Iowa, for a period not to exceed twenty (20) years, for the payment of the indebtedness created in the purchase of a site on the west bank of the Des Moines river, between Court avenue and Grand avenue and east of West Second street, in the city of Des Moines, Iowa, at a cost not to exceed one hundred thousand (100,000) dollars, upon which to erect a new court house, said tax to be levied annually, and to begin in the year 1900, provided the said board shall decide to incur an indebtedness in the purchase of said site. Third. To incur an indebtedness not exceeding one hundred thousand (100,000) dollars, for a site on the west bank of the Des Moines river, between Court avenue and Grand avenue and east of West Second street in the city of Des Moines, Iowa, upon which to erect a new court house, and to execute proper evidences of such indebtedness.”

Acts 28th Gen. Assem. p. 143.

Whereupon the original submission was set aside, and the cases resubmitted at the May term, 1900, with arguments as to the effect of the legalizing act. Modified and affirmed.C. C. & C. L. Nourse and Bowen & Brockett, for plaintiffs David F. Witter and C. O. Nourse.

Cummins, Hewitt & Wright, Phillips, Ryan & Ryan, and Evans & Adams, for defendants.

SHERWIN, J.

The plaintiffs David F. Witter and C. O. Nourse assail the curative act as unconstitutional, and allege as grounds therefor that it is intended to...