133 Iowa 582 | Iowa | 1907
The proposed improvement was authorized by ordinance, which it is claimed was passed by the city council in July of the year 1900. Claim is made that this ordinance was not legally adopted. The records of the city council show the following with reference thereto:
t
Council Chamber, Independence, Iowa.
July 11th, 1900.
Roll call: Members all present except Councilmen O’Brien and Blamer. ... ‘A bill for an ordinance to provide for the construction of sewers in the city of Independence, Iowa, to regulate the use of the same and establishing a sewer district,’ was then presented and read. Councilman Plane moved that the reading of the bill just read be considered its first reading, which prevailed; each member of the council present having voted aye. Absent, Councilmen O’Brien and Blamer. Councilman Plane moved that the rules be suspended, and the bill read a second time, which prevailed; each member of the council present voting aye. Absent, Councilmen O’Brien and Blamer. Councilman Davison moved that the rules be suspended, and the bill read a third time, which prevailed; each member of the council present having voted aye. Absent, Councilmen O’Brien and Blamer. The bill was then read the third time. The bill was then read by its title, put upon its passage, and its title agreed to; each member of the council present having voted aye.. Absent, Councilmen O’Brien and Blamer. . . .
Exhibit A — An Ordinance.
An ordinance to Provide for the Construction of Sewers in the City of Independence, Iowa, to Regulate the Dse of the Same and Establishing a Sewer District.
The case now before fis is clearly distinguishable from Marion Water Company v. City, 121 Iowa, 306, and Town of Bayard v. Baker, 76 Iowa, 221. In the former case the minutes of the meeting showed who were present, that the roll was called, and that the vote was unanimously aye. In the instant case, there is no showing as to who were present, no showing that the roll was called, and no showing that each member in turn voted aye. In the Marion case, the names of those present were given, the roll was called, and, as we held, the equivalent of a statement that each voted aye appeared. In the Baker case, the roll was called, and five members of the council and the mayor voted in favor of the ordinance. True the record did not show that the nays were called; but it did not show that any other members were present, save those who voted in the affirmative; and it was held unnecessary to call for the nays. In the more recent case of
Under the practical concessions of counsel for the city, as well as the weight of judicial authority, upon the proposition, we must hold .that the ordinance was not legally adopted.
It follows that the judgment and order must be, and it is, affirmed.