51 Iowa 385 | Iowa | 1879
— The plaintiff appeals, not from the final orders made after a hearing upon evidence and a decree upon the merits, but from an order vacating a temporary injunction before granted in favor of plaintiff, and an order allowing a temporary injunction in favor of defendant upon his cross-petition. The case presents two distinct questions, which must be separately considered.
Section 3246 of the Code provides: “Any person having a valid subsisting interest in real property, and a right to the immediate possession thereof, may recover the same by action against any person acting as owner, landlord, or tenant of the property claimed.”
This section furnishes the plaintiff a plain and adequate means of obtaining possession of the property, by action at law, whenever the possession of the property becomes necessary for the purpose of making the improvement in question. Courts of equity'will, under certain circumstances, interfere by injunction to prevent trespasses upon real estate; but to authorize such interference there must exist ■ some distinct ground of equitable jurisdiction, such as the insolvency of the party sought to be enjoined, the prevention of waste, or irreparable injury, or a multiplicity of suits. See 2 Story’s Equity Jurisprudence, § 928; Cowles v. Shaw et al., 2 Iowa, 496; Gibbs v. McFadden, 39 Id. 371. In section 928 of Story’s Equity Jurisprudence it is said: “If the trespass be fugitive and temporary, and adequate compensation can be obtained in an action at law, there is no ground to justify the interposition of courts of equity. Formerly, indeed, courts of equity were extremely reluctant to interfere at all, even in regard to cases of repeated trespasses. But now there is not
1. The appellant insists that the order is erroneous because, in estimating the amount of the plaintiff’s indebtedness, the outstanding warrants are included and counted. It is urged that the constitutional inhibition applies only to bonded indebtedness, and is not applicable to outstanding warrants issued for current city expenses.
The provision of the Constitution, article 11, section 3, is as follows: “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.”
The language of this provision is very general and comprehensive. It includes indebtedness incurred in any manner, •or for any purpose. We would not be justified in limiting it by construction, as contended for by the appellant.
In Scott v. The City of Davenport, 34 Iowa, 208, referring to ihis provision of the constitution, the following language is
In Grant v. The City of Davenport, 36 Iowa, 396 (401), referring to this constitutional provision it is said: “We are not by any means inclined to limit or restrain the meaning of the word ‘indebtedness,’ as there used, so-as to confine it to debts evidenced by bond, or to those which are due simply, but rather to give to the word its fair and legitimate meaning and general acceptation. ” In French v. The City of Burlington, 42 Iowa, 614, the correctness of the doctrine above announced was recognized and reaffirmed. In this last case it is said: “The words ‘ shall not become indebted in any manner or for any purpose’have an important bearing on the question at issue-. If the indebtedness is created for any purpose it is within the constitutional inhibition. Certainly those words include the necessary as well as convenient improvement of the streets, as well as all other things deemed necessary and proper for the comfort or health of the people of the city. It matters not how or for what purpose the indebtedness is incurred, it is prohibited unless it can be shown to be reasonably certain such indebtedness can be liquidated and paid from the ordinary current revenues of the city.” In this last case it was held that an injunction should be granted to restrain the carrying out of contracts for the grading of streets, which created an indebtedness in excess of the constitutional limitation. This last decision is an authority directly in point against the position of appellant, that the constitutional inhibition applies only to bonded indebtedness. The language of the constitutional provision is not susceptible of a construction so limiting it. The court did not err in holding that the amount
In Dively v. The City of Cedar Falls, 27 Iowa, 227, it was held that the issue of warrants to any sum, however great, over five per cent of its taxable property, would not be a violation of the 'constitution if the city has the means in its treasury to meet its indebtedness; as, in such case, it would not become indebted within the meaning of the Constitution.
In Grant v. The City of Davenport, 36 Iowa, 396, it was held that the city, although indebted to the constitutional limitation, might enter into a contract with a water company for the rent of a certain number of hydrants for the period of twenty-five years, the rental to be paid annually out of current revenues which the city was authorized to raise. In this ease the true rule was declared to be “that when the contract made by the municipal corporation pertains to its ordinary expenses, and is, together with other like expenses, within the limit of its current revenues, and such special taxes as it may legally and in good faith intend to levy therefor, such contract does not constitute the incurring of indebtedness within the meaning of the constitutional provisions.”
In French v. The City of Burlington, 42 Iowa, 614 (618), it is said: “In ascertaining whether the contemplated indebtedness is within the current revenues, a fair and perhaps
This language was employed respecting a contract for the grading, of streets, which, it was claimed, could be paid for out of the current revenues, and for which it was not proposed to create a permanent indebtedness. The language employed does not, when properly understood, extend the rule beyond that recognized in Grant v. The City of Davenport, supra. It furnishes no basis for the conclusion that uncollected taxes and the levy for the current year may be deducted from the outstanding indebtedness of a city for the purpose of ascertaining the real indebtedness. The position of appellant confounds the distinction between an indebtedness and insolvency. A person who has outstanding obligations to the extent of ten thousand dollars is indebted to that amount, without regard to the means which he may have for the payment of his debts when they may mature. The same is true of a city. When a warrant is drawn upon the treasurer, if the money is in the hands of the treasurer to pay it, the reasonable expectation is that it will be presented and paid. By such act no debt, as contemplated in the constitution, is incurred. If, however, no funds are on hand to pay the warrant, a debt is incurred. If the bonds in question should be issued upon the faith of the uncollected taxes and the levy for the current year, there is -no power which could prevent the city authorities from absorbing the taxes as collected in payment of ordinary current expenses. Indeed, such a course might be absolutely necessary to maintain the city government. It is plain that, if bonds should be issued in anticipation of uncollected taxes, the constitutional limitation might, and probably would, be transcended. That the constitutional provision in question applied to cities organized under special charter, be
The judgment of the court below must, upon both points, be
Affirmed.