137 Iowa 452 | Iowa | 1908
The defendant city of Des Moines is a city of the first class, organized under the general statute, and having a population of over forty thousand. The other defendants are the mayor, treasurer, and members of the city council of said city. The plaintiffs and the intervener Huston are residents, citizens, and taxpayers of said city, and the intervener board of park commissioners of the city of Des Moines is a body existing adjunct to said city in virtue of the provisions of chapter 9, title 5, of the Code. This action grows out of an attempt on the part of the defendant city to advantage itself of the provisions of chapter 48, Acts Thirty-second General Assembly, entitled “ An act to pro
By section 6 it is provided that every such city shall be governed by the council consisting of the mayor and four councilmen, each of whom shall have the right to vote on all questions; fixes the number necessary to a quorum; provides that the mayor shall preside at all meetings, but shall have no power to veto. Section V is as follows: “ The council shall have and possess and the council and its members shall exercise all executive, legislative and judicial powers and duties now had, possessed and exercised by the mayor, city council, board of public works, park commissioners, board of police and fire commissioners, board of waterworks trustees, board of library trustees, solicitor, assessor, treasurer, auditor, city engineer, and other executive and administrative officers in cities of the first class and cities acting under special charter. The executive and administrative powers, authority and duties in such cities shall be distributed into and among five departments, as follows: 1. Department of public affairs. 2. Department of accounts and finances. 3. Department of public safety. 4. Depart
It is to be observed that the system of municipal government thus sought to be authorized differs radically in many respects from the general system provided for by title 5 of the Code. However, as the act does not contemplate any change in the functions of municipal government, but concerns only the instrumentalities through which such functions are to be exercised, and the form and manner of exercise, and as the right of the Legislature in general to dictate changes in such respect is not challenged, we are not required to enter into detail respecting such points of difference.
Plaintiffs allege that in April, 1901, a petition in form as required, and signed by the requisite number of resident voters, was presented to the mayor of the defendant city, requesting that the question of organizing the city under said act of the Thirty-Second General Assembly be submitted to an election. That, pursuant, thereto, a special election was called and held at which a majority of the votes cast were in favor of organizing under said act. The allegation follows that the. city and its officers are making preparation to hold a primary and general election for mayor and councilmen as contemplated by said act, and to perfect an organization conforming to the provisions thereof. A decree of injunction is asked because the act of the General Assembly in question —
Now, having agreed upon a form or plan of general government it became of interest, as we conceive, that there should be maintained in the several States, then and hereafter composing the Union, a form of government constructed along the lines then presently existing, and generally to be in harmony with the federal plan agreed upon. And, to secure this there was included in the constitutional writing the guaranty provision now under consideration. In this view it becomes apparent that the guaranty was intended to be to the States as such; that it was not intended to have any relation to the systems of local government provided by the several States for the regulation of their municipalities or other subdivisions. Says Judge Cooley in his work on Constitutional Limitations, 28: “ The purpose of this guaranty was to protect a Union founded upon republican principles against aristocratic and monarchical invasions,” that is, tó prevent the people of a State from abolishing a republican form of government. And this is the thought of text and essay writers generally. Clearly enough, there is nothing in the language of the guaranty to indicate a purpose on the part of the general government to interfere with those matters of internal or domestic concern within a State which are of interest only to the people thereof — at large, or as
The powers of the general government are those delegated to it — either in express words, or following by necessary implication from a power expressly delegated. And the voice of authority is one against any deprivation of or interference with the power of each State to regulate its own internal affairs in which it alone has interest. As said in Claiborne Co. v. Brooks, 111 U. S. 412 (4 Sup. Ct. 494, 28 L. Ed. 470) : “It is undoubtedly a question of local policy with each State what sháll be the extent and character of the power which its various political and municipal organizations shall possess, and the settled decision of its highest courts on this subject will be regarded as authoritative by the courts of the United States, for it is a question that relates to the internal constitution of the body politic of the State.” And in direct line is the holding of the California court in the recent case of In re Pfahler, (Cal. Sup.), (88 Pac. 270, 11 L. R. A. (N. S.) 1092: “It is apparent . . . the constitutional guaranty was intended to apply only to the form of government for the State at large, and not at all to the local government prescribed by the State for its municipalities and other subdivisions. . . . It is clearly a question of local policy with each State what shall be its various political subdivisions for purposes of internal government, and what shall be the extent and character of the powers of those subdivisions and the manner of their exercise.” See, also, the following cases in which the principle is given recognition: State v. King, 37 Iowa, 464; Hopkins v. Duluth, 81 Minn. 189 (83 N. W. 536) ; Brown v. Galveston, 97 Tex. 1 (75 S. W. 488) ; Kadderly v. Portland, 44 Or. 118 (74 Pac. 710, 75 Pac. 222); Williams v. Eggleston, 170 U. S. 304 (18 Sup. Ct. 617, 42 L. Ed. 1047). Kies v. Lowrey, 199 U. S. 233 (26 Sup. Ct. 27, 50 L. Ed. 167), is not an authority against the view thus taken, as counsel far appellants sce¡a? to think.
In a sense, it is true that according to its terms the act is to have a limited operation. But it is a limitation founded upon inherent conditions, and not upon number. It will be observed that the reading of the act is “ any city ”; there is no attempt to make individual selection. This being true, there is no force in the contention that the act must be condemned because local or special. Those words as employed in the Constitution are essentially descriptive. While, theoretically, they are not strictly similar in meaning, still when we consider the circumstances of their use, as we are authorized to do, it becomes clear that the framers of the Constitution employed them as equivalents — as descriptive of one and the same thing. Looking for a moment into the history of the times we find that it was a provision of the Constitution of 1846 that the Legislature might pass “ special ” laws for the creation of political or municipal corporations. And, under this authority, as it is well known, many special charters were granted during the first ten years of the State’s existence. An examination of the various acts discloses that in each instance they were both local and special — local as to the territory to be affected, and special as to the powers authorized to be exercised within such territory. And in enumerating the powers to be conferred in each instance the Legislature was altogether unhampered by any established rule of conformity. In the course of time, opposition to the
Erom this comes readily the conclusion that the practice adjudged to be evil and sought to be prohibited was individual corporate organizations; that is, corporate organization combining local and special features — local as to place, and special as to the particular powers granted. This conclusion is strengthened when we consider that, in each instance where organization had been effected in virtue of the constitutional authority, no more than a single legislative act was resorted to for the purpose. In such act the place was fixed, and the grant of powers made. So, also, on general reasoning we cannot conceive of a local act providing for municipal organization which is not also special. Failing to specialize the place, an act could not in the very nature of things be local. On the other hand, it does not seem that, there could be a special act for incorporation without reference made therein in some way, direct or indirect, to the place within the limits of which the act should have force of operation. From all this, we have the ultimate conclusion that the prohibitive ban of the present Constitution is against an incorporation act, the distinctive features of which shall be the selection of a fixed and definite territorial location, and a grant of individualized powers; powers not necessarily different in character from those to be- found in other grants, but made up without reference to any other grant. It follows from this that the words “ local ” and “ special ” must be accepted as synonymous, in the sense that they are descriptive of one and the same thing. When analyzed, our own cases will be found to rest upon this view. The practice of municipal classification — each class having
In Owen v. Sioux City there was brought into question an act of the Legislature which granted to cities of the first class, organized since January 1, 1881, certain powers in respect of street improvements, to levy taxes to pay therefor, etc. The act was assailed as special and not of uniform operation. The court said: “ That the law in question is special in its nature does not render it vulnerable to the constitutional inhibition. That it is special as to the subject-matter to which it applies is not to be doubted. . . . Nothing in the specifications (of the Constitution) is in any way a prohibition on the legislative authority to legislate specially with reference to cities of a particular class, nor as to particular cities of a class, by any form of designation, hence we may dismiss the claim that the act is of a special nature as to the subject of legislation so as to render it void.” Haskel v. Burlington arose upon an act of the Legislature granting to all cities under special charter, not theretofore possessing the right, full power to sell real and personal
Now, under the act immediately being considered, it will be observed that “ any city ” may organize, etc. This is tantamount to saying that the act is intended to have application to every city in the State — now existing, or hereafter
The cities and towns of the State, when incorporated, are classified as cities of the first and cities of the second class, and incorporated towns, the classification being based on difference in population; and the exercise of corporate powers by each, under legislative authority, is in pursuance of such classification. Hence it seems to be conceded that legislation applicable to these different corporations answers the constitutional requirement as to uniformity of operation. It should be said in this connection that this basis of classification is one based on legislative enactments, and has no express constitutional sanction. The thought is important as bearing on the authority of the Legislature to make other classifications in defining the operation of its enactments. . . . It [the act in question] ■ was made to meet conditions and wants existing or anticipated, of a class of cities, and the date was but the separating point whereby other cities were excluded from the operation of the law. That it makes another classification of cities than those based on population is not fatal to the act, because, as we have said, the classification bn the basis of population is by legislative action, and there is nothing prohibiting such further classification as the Legislature may think proper; and the only proper inquiry as to classification in the case at bar is, is. the act,- because of the classification adopted, without that uniformity of operation contemplated by the Constitution? We think not.
Aside from the presumption, however, it is not difficult to reach the conclusion that the lawmaking body, in its survey of the conditions existing in the State, and having regard for future interests, found sufficient upon which to justify action looking to the better government of our larger cities, for whose general welfare it is in large measure responsible. Not only will- the lawmaking body be presumed to know that which is commonly known among men, but it will be presumed to have investigated and advised itself respecting the conditions made by it the subject of legislative enactment. Every student of civic affairs knows that the problem involved in the government of our larger cities — here and elsewhere throughout the Union — is one of the chiefest concern, of perplexity, and anxiety. So often does the cry against official corruption and misrule go up from the congested centers of population, that every serious minded citizen whose interests are bound up to any measureable extent with a proper administration of municipal affairs, and whose desire is for a
In Dalby v. Wolf, the' so-called “ Herd law,” which authorized the county judge to submit to the people of his county the question whether stock shall be permitted to run at large, was under consideration, and the law was assailed as one depending for its validity upon a vote of the people. In writing the opinion Wright, J., says: “ The law is not obnoxious to this objection. The popular will is expressed under and by virtue of a law that is in force and effect, and the people neither make nor repeal it. They only determine whether a certain thing shall be done under the law, and not whether said law shall take effect. The law had full and absolute vitality when it passed from the hands of the Legislature, and the people under the ‘ rule of action ’ therein given for their government proceeded to act.” And in State v. Forhner, which arose under the so-called “ mulct tax laws,” it is said by Deemer, J., that “ the constitutional objection to the law is met, if the act, when it came from the Legislature, received the Governor’s approval, and was properly published, was, of itself, a complete and perfect enactment.” We need not review the other cases -cited. That the act here in question became a completed act does not seem to us open to question. It passed through the regular channels of legislative enactment, and it had the approval of the executive. Moreover, by its terms, the act provided that it should become a law in full force and effect upon its publication, and publication as by law provided was had. Nothing then remained but for the cities embraced within the class designated by the act to severally determine whether or not they would advantage themselves of such act. This being the situation the act is not open to the criticism here put upon it.
Y. It will be observed that section 18 of the act em
Section 471, Code 1873, conferred upon cities and towns power to erect or authorize the erection of waterworks on condition that the voters at a general or special election approve the same by vote. The city council of Bloomfield adopted an ordinance, providing for a waterworks system, in which ordinance was contained an express declaration that it should not become effective as an ordinance except upon vote of the electors. In the case of Taylor v. McFadden, cited, the validity of the statute and of this ordinance was questioned on the ground that the taking effect was made to depend upon a vote of the people. And, in support, the holding in Santo v. State, 2 Iowa, 203, and other like cases were relied upon. Answering, this court said: “ This ruling [in the Santo case] is based upon the constitutional provisions vesting the legislative authority of the State in the General Assembly, and prescribing how laws may be enacted, approved, and of effect. These restrictions do not apply to the legislative authority of the councils of cities and incorporated towns. Their powers are conferred hy and limited to those expressed in the charter or statutes under which the corporation exists and operates.” In the case of In re Pf abler, the court, after a full discussion of the subject, concluded thus: “That the electors of a duly organized subdivision of this State may be authorized to directly participate in the exercise of the legislative power of such subdivision cannot, we think, be seriously disputed. There is certainly no provision of our Constitution which
It is to be observed, to begin with, that nowhere in the act is it provided in direct terms that in exercising his right to vote — either at the primary or general election —■ the voter shall be restricted to the so-called official ballot. Respecting the primary ballot, there is placed at the head of, and included in the form prescribed, a parenthetical direction to the voter as follows: “ Place a cross in the square preceding the names of the parties you favor as candidates for the respective positions.” Respecting the election ballot, the provision is that such “ shall be in the same general form as for such primary elections, so far as applicable,” etc. It is fair to conclude, however, that the intent was to confine the use of ballots to those authorized to be officially provided. Such clearly appears to be the spirit of the act. And it is not of this restriction that plaintiffs complain. Nor could they well do so. As far as we have observed, all of the authorities agree that a voter has no right of complaint simply because he is required to use a printed form of ballot. Ground for dispute has arisen only where there has been an attempt to put
From what has been said it follows that if the act in question puts restriction upon the voter in making choice of the candidates for whom he will vote, or upon the candidates who may properly be voted for, it must be because of the use of the expression “ and no other names shall be placed upon the ballot.” And the question comes down to one of construction: What meaning was it intended the expression should have? In and of themselves the words do not prohibit the substitution of names of candidates by writing upon the ballot. It is not impossible that in fact such was within the legislative purpose. ■ If so, however, it would have been easy to have said so in unmistakable language. And on very familiar principles we will not ascribe to the words used by the lawmaking body a meaning which does not in common understanding follow of necessity for the purpose of holding the act in which they occur obnoxious to the Constitution. Moreover, there are grounds for holding that the provision in the act in question was
Some other points are made in argument, but they are either disposed of by what has already been said, or they do not tíierit separate discussion. It follows that the ruling on the demurrer was correct, and it is affirmed.