193 Iowa 109 | Iowa | 1921
The city of Cedar Rapids since 1908 had been operating under the commission plan of government. The Cedar River
This commission did no work other than of a preliminary character, and there was no real attempt at river-front improvement until some time after the adoption by the city of the commission form of government.
, By Chapter 66 of the Acts of the Thirty-third General Assembly, effective April 13, 1909 (Section 1056-a48, Code Supplement, 1913), it was provided that cities operating under the commission plan of government “shall have and may exercise all the right and powers conferred by said act [Chapter 210, Acts of the 29th General Assembly] on the said river front improvement commission, and all such rights and powers are hereby transferred to and vested in the eity council of any such city or cities. Said council shall have the power to elect and shall elect a commission of three persons, to be known as the river front improvement commission, whose duties shall be to carry out the powers and duties with respect to the beds and banks of streams in such cities, herein conferred upon said city council, or such limited powers in respect thereto as the council may prescribe by ordinance.”
Thereafter, on May 2, 1910, the city council appointed a board of three commissioners, and on the 31st day of January, 1913, passed an ordinance conferring on said river-front commission “all those powers and duties which were and are con
Following the taking effect of Chapter 66 of the Acts of the Thirty-third General Assembly, and prior to the election thereunder of a river-front-improvement commission, and prior to the passage of the ordinance conferring on the river-front commission the powers granted by that act of the city council, the river-front-improvement commission, which had been elected under the original law of the twenty-ninth general assembly, and which continued in office without re-election, caused channel lines to be platted at the place of the wall in controversy.
The first improvement made by the commission was in 1914, when there was constructed a concrete perpendicular wall on the west side of the river, between First and Third Avenues, connecting the west abutments of First, Second, and Third Avenue bridges. This improvement on the west side having been made, the commission next turned its attention to the east side of the river, to the improvement in controversy, and negotiated with the property owners on a proposition to fill a part of the existing river channel for the erection of a driveway, the negotiations finally resulting in the contract involved in this action. The city, through its councilmen, approved and signed the contract.
On the 23d day of May, 1916, Frederick Erickson et al., appellees, instituted this action, and asked that the contract be canceled, and that all parties to the contract be restrained from proceeding with its enforcement, on the ground that the proposed construction of the east wall did not leave an adequate waterway for the flood waters of the river, and was, therefore, dangerous to the lives and property of the citizens of the city.
The river-front-improvement commission and the city, answering the petition, denied the material allegations, and the case remained pending for some time.
On March 26, 1917, there occurred a flood in the Cedar River at Cedar Rapids. The council, after inspecting the conditions during this flood and observing its height with reference to the' bridges, came to the unanimous conclusion that it would be dangerous to construct the wall provided for in the contract.
On June 19, 1917, "W. L. Cherry et al., appellants, taxpayers, intervened in the action, taking substantially the same position as the river-front-improvement commission, and prayed a decree for specific enforcement of the contract, and that the river-front-improvement commission be commanded to carry out the contract, and restraining the city council from performing any acts which would interfere with the carrying out of the contract.
As before mentioned, after the flood in March, 1917, the city council, being convinced that its former position was wrong, changed its position, and joined with the original plaintiffs, Erickson et al., appellees, in seeking to have the contract canceled. In August, 1917, the city filed a cross-petition, making James B. Nelson et al., parties to the contract, defendants, and prayed that the contract be canceled.
The issues as finally made up arranged the original plaintiffs, Erickson et al., and the city, an original defendant, on one side, asking the cancellation of the contract, and on the other side, the river-front-improvement commission, James B. Nelson et al., parties to the contract, and W. L. Cherry et al., taxpayers, interveners, asking for specific enforcement of the contract. The court found for plaintiff and the city, and en
II. The main law question is presented by appellees’ taking the position that the river-front commissoners, at the time of the trial, had no legal power or authority, under the law or ordinances of the city, and were not entitled to the relief asked, and by appellants’ contending that the wall was to be constructed on a channel line previously adopted by the river-front-improvement commission and approved by the city council and the state executive council; and that the line as thus fixed was conclusive; that the adoption of this channel line, in this manner, constituted an act by the executive department of the state, involving the exercise of discretion; and that said discretion and judgment were properly exercised, in accordance with law, and are binding and conclusive; and that the court has no jurisdiction to inquire into it, or to set aside those acts, or to change or modify the location of the channel lines so established ; and' that they were entitled to the specific enforcement •of the contract against the city.
An ultimate fact issue was presented by appellees, alleging, in substance, that the contract, if carried out, would endanger the lives and property of the citizens of Cedar Rapids, because the proposed construction would so narrow the river as to make the channel inadequate to carry the reasonably to be expected flood waters; that the councilmen of the city were induced to authorize the execution of the contract, on behalf of the city, by representations by the river-front-improvement commission and by the property owners that they had had a full and complete investigation made by expert engineers as to the adequacy of the channel proposed, and that ample provision had been
The river-front-improvement commission, "W, L. Cherry et al., and James B. Nelson et al., deny these allegations and affirmatively allege, in substance, that sufficient provision had bee'n made for carrying the flood waters of the river, and that the carrying out of the contract would be a benefit to the citizens of Cedar Rapids, and that failure to carry out the contract would result in great loss to the city and its inhabitants.
III. In the year 1902, the twenty-ninth general assembly enacted the original river-front law, Chapter 9-A, Code Supplement, 1913. By the terms of that act, there was provided a body corporate, known as the river-front-improvement commission, consisting of three members, originally appointed by the governor, and provision was made for their subsequent election by the people of the city. This commission was given authority and power with respect to the improvement of the banks of meandered rivers and the construction of river walls, subject to the statutory requirement that, in the making of such im
About April 4, 1910, the channel line adopted by the riverfront-improvement commission was approved by the city council, and was submitted to and approved by. the executive council of the state of Iowa on June 15, 1910. On May 2, 1910, the city council elected three commissioners, as provided by Chapter 66, Acts of the Thirty-third General Assembly.
On January 31, 1913, the city passed an ordinance, by the terms of which it bestowed upon the river-front-improvement commission all the rights and powers which had been delegated to the city council under Chapter 66 of the Acts of the Thirty-third General Assembly.
On May 5, 1916, the contract involved in this action was signed by the mayor.
On June 29, 1917, the city passed Ordinance No. 1279, repealing Ordinance No. 1041, above mentioned, and providing that “the river-front-improvement commission of the city of Cedar Rapids, Iowa, shall exercise only such powers and duties as are herein expressly provided for, and none others.” Further provisions of the ordinance limited the powers of the
It is the position of the plaintiffs and the city that, by repeal of Ordinance No. 1041, by which the city conferred upon the commission such powers and duties as had been taken from the commission and delegated to the city by Chapter 66, Acts of the Thirty-third General Assembly, the city was reinvested with all of the rights, powers, and duties with respect to the river-front improvements, and could control the kind and character of such improvement, subject only to the requirements of the statute and to the approval of the executive council of the state; that the city, having thus regained its power, could set aside and undo any act that had previously been done by it or by its agent, the river-front-improvement commission, unless other persons had acquired vested or contractual rights under the Acts of the Twenty-ninth General Assembly.
On the other hand, the river-front-improvement commission, appellant, and W. L. Cherry et al., taxpayers, appellants, maintain that the repeal of Ordinance No. 1041, which granted full power to the river-front-improvement commission, did not affect the rights of the property owners, parties to the contract; nor did it give the city council the right or power to rescind the contract; nor did the repeal of the first ordinance, or the subsequent action of the council, affect the location or validity and binding effect of the channel line.
Plaintiffs and the city do not ask to haye the channel lines established in 1910 set aside and abandoned. As we understand the record, all that appellees asked was that the contract entered into in 1916 be set aside, and that the specific improvement provided for by that contract be enjoined. The decree entered affected only the contract provided for, and the specific form of construction.
“Where general power is given a municipality, it must be exercised in a reasonable manner; and, if it is not so exercised, it is the duty of the courts to protect those who may suffer thereby. ’ ’
The position of appellants, that the relief asked by appellees involves the review of a discretionary act by a legislative body, we think is untenable, and in any event, cannot be raised by appellants. This is a prerogative belonging solely to the public body the exercise of whose discretion is involved, — in the instant case, the city council. After the council had exercised its discretion with respect to the construction of the wall in the first instance, by granting to the commission, by Ordinance No. 1041, the power that it (the city) possessed, as to river-front improvements, and had afterwards approved the action of the commission in providing for a wall to be erected on the channel line fixed in 1910, and had approved the contract entered into by the commission and property owners, the city, through its council, having exercised its discretion with respect to the matters involved in the contract, may likewise exercise its discretion tb undo that act, and decide that it will not make the improvement, provided that the rights of persons under the contract are not thereby unlawfully disturbed. The city council, being the body vested with discretion with respect to river-front-improvement matters, under the existing laws and ordinances of the city, can lawfully rescind any action taken by it or by its agent, the river-front-improvement commission, unless other parties have a valid and enforcible con-' tract right. - As we understand the issues, what the city insisted
Appellants claim that plaintiffs, taxpayers, and the city were not entitled to ask for an injunction in a court of equity. We think it is elementary that a taxpayer can restrain the illegal acts of public officials. Bilsborrow v. Pierce, 101 Minn. 271 (112 N. W. 274) ; Moffitt v. Brainard, 92 Iowa 122. Then,
It is'apparent, therefore, that the alleged contract avhs not binding on the city, and that the city has poAver at any time to locate walls confining the Avaters of the riATr so as to provide an adequate waterway.
We think the- ijontract is further illegal in that it provides for a definite form of construction in the river. Section 879-f of the Supplement to the Code, 1913, provides':
4. municipal ookriver-front'comvai of pians. “That said commission may adopt plans, profiles, and specifications for the improvement of the said river channel and banks, and the reclaiming of lands betAveen the meandered lines of said stream Avithin such city, and the construction of dams; but before be*121 ginning tbe execution of tbe same, such plans, profiles, and specifications shall be approved by the executive council of Iowa.”
This section is a part of the original river-front-improvement law, and by the provisions of Section 1056-a48, the duty and power therein devolved upon the commission are transferred to and are to be exercised by the city council. However this may be, and whether the duty is to be exercised by the commission or by the council, the statute clearly requires that, before any construction can be made, the plans, profiles, and specifications of the construction must be submitted to and approved by the state executive council. As we understand from the record, this was not done. The executive council did approve the channel lines; but the plans, profiles, and specifications for the construction of a wall on the east side of the river on the channel line between First and Fifth Avenues, the proposed wall in controversy in this cause, were never presented to the executive council for approval. It cannot be successfully contended that securing approval of the executive council of the channel lines was a compliance with this provision of the statute, because no plans, profiles, and specifications of any improvement or construction work were submitted in connection therewith, or were involved in the approval of the channel lines.
For the reasons above given, or either one of them, we may determine that the contract need not be enforced, without examination of the testimony in the cause, which goes to the adequacy and safety of the proposed channel to be made by the proposed wall. ¥e think this is true even though the property owners, who are parties to the alleged contract, are to be considered as appellants, insisting upon litigating in this court their rights under the contract.
From a résumé of the record it appears that the original river-front law created the river-front-improvement commission, and gave it authority and power with respect to the improvement of banks of meandered rivers, such as the Cedar River, and the construction of river walls, subject to statutory requirements. Later, the commission form of government was provided for by the legislature, and the city of Cedar Rapids adopted it. Later, in the year 1909, the thirty-third general
The appellants contend that the establishment of the channel lines constituted a legislative act, which is not subject to review by the courts, apparently taking the position that, when the channel lines were established and drawn on a plat in 1910, their act, some six years later, in entering into a contract for the building of a perpendicular wall 23 feet high on these channel lines, is likewise beyond the power of the court to review. As we understand the record, neither the plaintiffs nor the city, as cross-petitioner, asked to have the channel lines set aside or abandoned. All that the plaintiffs and the city asked was that the contract entered into in 1916 be set aside, and that the specific improvement provided for by that contract be enjoined. All that was affected by the decree was the contract providing for a specific form of construction. We are unable to agree with appellants on the effect which they claim for the establishment of channel lines and the subsequent executory contract to build a wall thereon.
Counsel for appellants, in their argument, seek to avail themselves of all the rights and powers vested in the commission under the original law, and seem to ignore the later enactment. They contend that the commission is still a body corporate, ' still has discretionary powers, and is the only body which can exercise power with respect to river-front improvements, and that it has an,d retains all the rights conferred by the original act. ' These contentions are directly contrary to the plain provisions of Chapter 66, which states:
“That all cities, which have heretofore been organized and acting under special charters and which have heretofore, or shall hereafter adopt the plan of government provided in Chapter 48 of the Acts of the Thirty-second General Assembly of Iowa, as the same appears in Chapter 14-C, Title V, of the Supplement to the Code, 1907, and in which river front improvement commissions have been or shall hereafter be organized, under Chapter 210 of the Acts of the Twenty-ninth General Assembly of Iowa, as the same appears in Chapter 9-A, Title V, of the Supplement to- the Code, 1907, shall have and may exercise all the right and powers conferred by said act on the said river front improvement commission, and all such rights and powers are hereby transferred to and vested in the city council of any such city or cities. Said council shall have the power to elect and shall elect a commission of three persons, to be known as the
Thus the legislature, in addition to transferring all powers and duties of the river-front commission, as provided by the original law, to the city council, specifically provided that the city council “may exercise” such rights and powers. The manifest purpose of the legislature was to transfer all discretion and supervision over river-front improvements to the city council, in cities under the commission plan of government. This later statute provided that the only right or power of the river-front-improvement commission was to carry out the plans of the city council, or to carry out such portion of the plans of the city council as the city council might delegate to the commission. Nowhere is there any discretion or any power given to the commission, in Chapter 66 of the Acts of the Thirty-third General Assembly. By the express terms of the statute, the city council was intended to be supreme, and to have the right to determine the policy and character of such improvements. The statute specifically provides that the city council may exercise such powers and duties. In view of this, we do not see any escape from the conclusion' that the power and discretion over all such matters as are embodied in the contract before us are in the city council; and since the enactment by 'the council of Ordinance No. 1279, which took away from the river-front-improvement commission everything except certain nominal duties, the river-front-improvement commission has no rights which it can assert in contravention of the position of the council. The commission, therefore, now has no rights under the contract which it can exercise, unless permitted to do so by the city council; and, under the existing ordinance, it is entitled to no relief.
"We think that no authority can be found holding that the policy or expediency of constructing any such public work, the exercise of discretion as to which is vested in any administrative board or official, can, in the absence of statutory permission, be interfered with or controlled by the courts; and, if it cannot be so, the reason must be that the exercise of such discretion and functions raises no question of judicial cognizance, because the powers exerted are political and governmental in their nature. ’1
In the Denny case, the board of supervisors had refused to establish a drainage district, and the action was to compel them to do so. This decision is fully explained in the case of Focht v. Board of Supervisors, 145 Iowa 130, in which we said:
"What the Denny case really decides is that there can be no appeal to the district court from an order of the board of supervisors finding that a proposed drainage district is not*127 for the public benefit or utility, or conducive to the public health, convenience, or welfare, and a refusal to establish the district on that account.”
See, also, In re Drainage Dist. No. 3, Hardin County, 146 Iowa 564.
In the instant case, the city council has determined that the improvement requested by the commission and by the interveners is not conducive to the public welfare and safety. Their decision in this regard is not subject to review by the court, and consequently, appellants are not entitled to a mandatory injunction, as prayed by them, to compel the city council to proceed with the construction of the river wall; and the fact that a contract was entered into for such improvement in no way enters into this phase of the ease, because these appellants contend for no rights under or by virtue of the contract. This being true, they have no rights which entitle them to ask for a trial de novo on the propositions stated and argued by them.
In the court below, James B. Nelson et al., as property owners and parties to the contract, were asking that the contract be carried out. Conceding that they had the right in the lower court to litigate their rights under the contract, have they such rights involved in this appeal? They did not appeal from the decision of the lower court.
“Coparties, refusing to join in an appeal, cannot after-wards appeal, or derive any benefit therefrom, unless from the necessity of the case, but they shall be held to have joined, and be liable for their proportion of the costs, unless they appear and object thereto.”
We think that the river-front-improvement commission, being shorn of its powers by Chapter 66 of the Acts of the
Under the conclusions above announced, we think that the interveners, as taxpayers, as a matter of law, had no right to insist upon having the provisions of the contract carried out, or to ask this court to review the decision of the lower court.
Now, the river-front-improvement commission and interveners having no right of their own availing them of a right to a trial de novo, can they predicate such a right upon the right which they contend that James B. Nelson et 'al., parties to.the contract, have, to litigate their alleged rights under the contract in this court? We think not. By serving James B. Nelson .et al. with notice of appeal, as codefendants, they made them nominal appellants. They are not before this court as appellants, , seeking affirmative relief, as they did in the court below. They have abandoned their litigation. We think they may be considered only as nominal appellants, and privileged only to derive such benefit from the appeal as the necessities of the case award them, and as liable for their proportion of the costs.
We do not deem it necessary or advisable to determine the fact issue in the ease, as to whether or not the construction of the wall proposed in the contract provides sufficient channel for 'the flowage of the waters of the Cedar River at flood time.
The decree of the lower court is affirmed. — Affirmed.
