Yarn v. City of Des Moines

• Decision Date: 28 July 1952
• Docket Number: No. 48154,48154
• Citation: 243 Iowa 991,54 N.W.2d 439
• Parties: YARN v. CITY OF DES MOINES et al.
• Court: Iowa Supreme Court

Page 439

54 N.W.2d 439

243 Iowa 991

YARN v. CITY OF DES MOINES et al.

No. 48154.

Supreme Court of Iowa.

July 28, 1952.

Fey H. Moody, of Des Moines, for appellant.

John A. Blanchard, Harris M. Coggeshall, and Ray C. Fountain, all of Des Moines, for appellees.

GARFIELD, Justice.

The electors of the city of Des Moines duly authorized it to erect and equip a memorial building as provided by chapter 37, Codes 1946, 1950, I.C.A., and to issue bonds not to exceed $5,250,000 to cover the expense thereof. Under date of October 1, 1950, bonds of $1,250,000 were issued and sold. A site has been acquired and the city is ready to proceed to erect and equip the building.

On April 14, 1952, the city adopted ordinance 5384 providing for issuance of the remaining $4,000,000 of bonds and levy of an annual tax to pay the interest and principal thereof within a period of 19 years. In so doing the city acted pursuant to Code sections 37.6, 37.7, 76.1, and 76.2, I.C.A.

Plaintiff, an elector-taxpayer, brought this equity action to set aside as void the ordinance and enjoin the proposed bond issue and tax levy on the ground a tax for payment of the bonds can be levied only under section 10, chapter 159, Acts 54th General Assembly, effective July 4, 1951, I.C.A. § 404.10. The trial court held chapter 159 did not repeal the Code sections under which the city acted and that the ordinance as well as the proposed bonds and tax levy therein provided for were therefore valid. Plaintiff has appealed.

The primary question presented is whether the statutes under which the city acted in providing for the proposed bond issue and tax levy, especially Code sections 37.7 and 76.2, I.C.A., were repealed or amended by implication or otherwise superseded by chapter 159, Acts 54th G.A. I.C.A. § 404.1 et seq. It is not claimed the city has not acted properly under the statutes as they existed when chapter 159 took effect.

The city has sought throughout to erect and equip a memorial building as provided in Code chapter 37, I.C.A. The proposition on which the electors voted at both municipal elections expressly so stated. Section 37.6 provides for the issuance of 'liberty memorial bonds' for the purpose of providing funds for the acquisition of necessary ground and the erection of the building and for the necessary equipment. The bonds are 'to be issued and sold as provided by law relative to general county and city bonds;' and are to become due in not more than 20 years.

Section 37.7 states: 'Levy for bonds For the purpose of liquidating such bonds together with the interest thereon, such county, city, or town shall levy upon all the property within the limits thereof, subject to taxation for such purpose, in addition to all other taxes provided by law, a special tax not exceeding in any one year four mills on the dollar for a period of not exceeding twenty years.'

Section 37.8 provides for a tax levy for 'the development, operation, and maintenance of such building'. It is not here involved but we mention it because it, as well as section 37.7, is referred to in section 10, paragraph 12, chapter 159, Acts 54th G.A., which plaintiff contends repeals or modifies 37.7.

Code section 76.1, I.C.A., in the chapter entitled 'Maturity and Payment of Bonds' provides in part: 'The annual levy shall be sufficient to pay the interest and approximately such portion of the principal of the bonds as will retire them in a period not exceeding twenty years from date of issue.'

Section 76.2, I.C.A., states: 'Mandatory levy. The governing authority of these political subdivisions before issuing bonds shall, by resolution, provide for the assessment of an annual levy upon all the taxable property in such public corporation sufficient to pay the interest and principal of such bonds within a period named not exceeding twenty years. A certified copy of this resolution shall be filed with the county auditor * * *; and the filing thereof shall make it a duty of such officer * * * to enter annually this levy for collection until funds are realized to pay the bonds in full.'

Chapter 159, Acts 54th G.A. is designated 'Municipal Revenue.' The title reads, 'An Act relating to taxation and other sources of municipal revenue, and to repeal chapter four hundred four (404) of the Code relating thereto and enact a substitute therefor, and to repeal certain other sections of the Code relating thereto, and to amend certain sections of the Code relating thereto.'

The principal provision of chapter 159 which plaintiff contends repeals or modifies Code section 37.7, I.C.A., is section 10, as follows: 'Municipal enterprises. Municipal corporations shall have power to annually cause to be levied for a fund to be known as the municipal enterprises fund an annual tax not to exceed ten (10) mills on the dollar on all taxable property within the corporate limits and allocate the proceeds thereof to be spent for the following purposes:' There follow, in section 10, 12 numbered, specified purposes for which municipalities have power to make an annual levy for 'the municipal enterprises fund'. Paragraph 12 of section 10 reads: '12. In lieu of the taxes provided by sections thirty seven and seven-tenths (37.7) and thirty seven and eight-tenths (37.8) for memorial halls and monuments.'

Paragraph 13 of section 10 states: 'For any other purpose having to do with municipal enterprises, specifically authorized by law.'

Plaintiff puts much stress on the words in paragraph 12, 'In lieu of the taxes provided by' section 37.7. It is argued that repeal or modification of 37.7 is clearly indicated or, in any event, the only tax the city may levy to provide for payment of the proposed bond issue is the annual levy under section 10, chapter 159.

The trial court held section 10, paragraph 12, chapter 159, gave municipalities an additional method of paying for a memorial building in lieu of that provided by Code sections 37.6 and 37.7, I.C.A., that the two sets of provisions are not in conflict and, as previously stated, the statutes under which the city acted were not repealed by chapter 159. The court also held that the taxes to be levied under Code section 76.2, I.C.A. in payment of the proposed bond issue should be administered through the 'debt service fund' provided for by section 13 of chapter 159 rather than the 'municipal enterprises fund' provided for by section 10.

Section 13, ch. 159, states:

'Dept service. Municipal corporations shall establish a debt service fund and shall cause to be levied for said fund a tax in such number of mills on the dollar on all taxable property within the corporate limits, as is necessary for the following purposes:

'1. To pay all judgments against the municipal corporation other than those specifically authorized by law to be paid from other funds;

'2. To pay the interest accruing on funding and refunding bonds outstanding, and such proportion of the principal * * *;

'3. For such other purposes relating to debt service as are specifically authorized by law;

'It shall be the duty of the council to allocate the proceeds of the tax herein provided to accomplish the purposes herein enumerated.'

A preliminary matter of evidence is presented. Defendants (the city and some of its officials) offered in evidence the Report of the Municipal Statutes Study Committee created by the 53d G.A., c. 395, made to the Governor of Iowa about November 15, 1950, less than two months before the 54th G.A. convened. Defendants also offered a directive by the state comptroller to all county auditors issued in May, 1951, and a similar document issued in April, 1952, by the successor to the former comptroller. The trial court gave some consideration to these exhibits in construing chapter 159 notwithstanding plaintiff's objection the law is plain and unambiguous so resort to construction is unnecessary. Admissibility of a fourth exhibit (No. 2) offered by defendants need not be considered since it is mainly a reprint of statutory provisions and does not aid either side.

We think the trial court properly considered the three exhibits first referred to. Of course resort cannot be had to construction if a statute is clear and unambiguous. Iowa Farm Serum Co. v. Board of Pharmacy Examiners, 240 Iowa 734, 742, 35 N.W.2d 848, 852; State ex rel. McElhinney v. All-Iowa Agricultural Ass'n, 242 Iowa 860, 868, 48 N.W.2d 281, 285; The Hoosier Casualty Co. of Indianapolis v. Fox, D.C., 102 F.Supp. 214, 235 (J. Graven); 50 Am.Jur., Statutes, section 225.

This same Report of the Municipal Statutes Study Committee was given much consideration by us in Alexander v. Town of Montezuma, 243 Iowa 251, 51 N.W.2d 456, where chapter 159 was construed. Our opinion recognizes that chapter 159 is properly subject to construction, quotes from the report at length and observes that the act indicates the intention of the 54th G.A. to effect objects of the committee as stated in its report.

The directives to county auditors from the two state comptrollers appear to have been issued pursuant to the second sentence of Code section 444.7, I.C.A. The first of these directives calls attention to chapter 159 and states, 'Bond Levies will be made on the budget under the Debt Service fund.' The second directive also calls attention to chapter 159 and provides: 'Levies to retire all general obligation bonds and interest thereon should be levied under Debt Service Fund, and the maximum millage authorized by Chapter 159, Section 2, Acts of the 54th G.A., need not be reduced a like amount. * * *' This construction placed upon chapter 159 by the state comptrollers furnishes some support for defendants' contention as to its meaning.

While not controlling, courts give weight to the construction of statutes of doubtful meaning by administrative officials charged with their operation and enforcement. State ex rel. McElhinney v. All-Iowa Agricultural Ass'n, supra, and authorities there cited; Umthum v. Day &...