153 F. 620 | U.S. Circuit Court for the Southern District of Iowa | 1907
This case is by a bill in equity and demurrers thereto. The principal recitals of the bill are as follows: The city is of about 15,000 people, on the Iowa river, near which city complainant has a plant or works. In January, 1900, there was pending in the state district court at Marshalltown an action by residents below the city against the glucose company, and suits were threatened against the city for polluting the waters of the river with sewerage and filth.
To avoid those suits, and remedy the evils, complainant by its officers and the city by resolution adopted by its council and approved by the mayor entered into a written contract, which', stated in an abbreviated form, is as follows: There are four “whereases.” One is that the city has 15,000 people, and has no adequate means for the proper or scientific disposal of its sewerage and that of its residents
Then it is alleged that pursuant to the contract the company loaned for said purposes to the city said $25,000, and that by the action of the city council in making said contract and in accepting the money and ratifying the contract said taxes each and every year and water rentals were thereby appropriated in equal amounts thereto to the payment of the company on account of said loan. But in the ye§v
“A contract illegal in part and legal as to the residue is void as to all, when the parts cannot be separated. When they can be, the good will stand and the rest will fall. One entire consideration can not, within this rule, be separated, though composed of distinct items, some of which, are legal and others illegal.”
Each city has an assessor, who assesses all taxable property. After his return is made, the city council raises or lowers such assessments, of individuals and corporations as the facts require. Then the city - makes the levies, which, multiplied by the assessments thus equalized, shows the amount of taxes the city is to have. This in due time goes into the hands of the county treasurer, who collects the city taxes, "■ either on voluntary payments, or by sale of the taxpayer’s property. When collected, the count}' treasurer pays over the city taxes to the city treasurer, to be disbursed on vote of the city council. Both the county and city treasurers perform only ministerial duties, and have no discretion. But the city council, the mayor acting therewith, have discretion, both as to equalizing the assessments and appropriating the money. Such being the situation, it is urged that the paragraph-“c” is in the nature of a bribe, or otherwise of a corrupting tendency.-. It is said that the tendency would be to lessen the company’s taxes, not only to the city, but to the school district, county, and state, in which the city is not interested other than indirectly except the city taxes. . Of course no honest councilman or mayor would be thus influenced, and, if the contract as to paragraph “c” is corrupt, then both the officers of the company and the officers of the city alike wew corrupt. Dike many other crimes, one alone cannot be guilty. It a crime requiring- parties on both sides to be guilty.- And such is
The bill recites that the city borrowed from the company $25,000, to be paid in installments, and that it now has part of the money holding it in trust for complainant, the amount of which is unknown, and that, by insisting on taxing the company, a cloud will be placed on the title to its property and the property sold. The city refuses to recognize the contract or to make payments. All persons agree, or should agree, that a municipality should as rigidly observe its contracts as an individual, and, when it borrows money, it should repay it with the same fidelity that an individual of character does. Aside from the moral phase of the question, in no other way can a standing worthy of credit be maintained. And, when a municipality repudiates its obligations for money borrowed, it only remains for the courts to enforce payment, unless the transaction is an illegal one, or one beyond the powers of the city to contract for. And the question is whether the contract to borrow the money and to create a fund with which to repay it was authorized by law, so that the city could make a valid and binding contract. The city is located on a river. The people below the city in Marshall and Tama counties have the right to use the waters of the river, and to have it unpolluted. The company had already been sued and the city was threatened with suits. Not only so, but the health and welfare of the people of the city required sewers. But, as urgent as the situation was for sewers, it would be worse than an idle performance to construct sewers with the mouths thereof on the commons; so that sewers must either empty into a stream, or the filth carried must otherwise be taken care of. According to the bill, carrying the filth into the stream was such a nuisance to the people below as not to be permitted. Then but the one thing remained, and that was to carry it from the city, take care of it, and protect the people below. If the city had the authority to do this, then the city council, the mayor concurring, was the sole and exclusive judge as to the means of doing it. It is not for a court to sit in judgment on the question of whether the council acted wisely, nor is it for the succeeding council to change the plan as to the method adopted, by declaring the former action unwise, and therefore shall not be paid for. City councils, like men, often borrow money, and expend it with extravagance, and sometimes foolishly. How it was in this case does not yet appear, as the city has not yet answered as to the facts.
This court at this time is only dealing with the question of the power
But, aside from all this, the duty of the city is to protect and maintain the health and convenience of the people; and that sewers are necessary for the health and convenience of the people need not be discussed. They.are not only a convenience-, but are a necessity, as all people know in a city of the size of Marshalltown; that is to say, while the sewers and basins need not be of a particular pattern, the filth must be carried off. And it must be carried away, and all the ■ distance away,- and- not part of the way. And it does not follow that the distance is to be measured in feet and inches. But it is a necessity that it be carried to such place as not to be harmful to others, as well as to remove the causes of pestilence in the city. And in the language of Judge Dillon in-his work on Municipal Corporations:
“In doing this, the city must have a choice of means adapted to ends, and are not to be'-confined to any one mode of operations.” n
As to the' implied powers of a city, in connection 'with, or in the absence of expressly conferred powers, I am unable to reach any other conclusion than that the city had the power. The authorities are very numerous. Some of the following hold, and the reasoning in others in my judgment conclude, the question. Crawfordsville v. Braden, 28 N. E. 849, 130 Ind. 149, 14 L. R. A. 268, 30 Am. St. Rep. 214; Myer v. Muscatine, 1 Wall. 384, 17 L. Ed. 564; Drexel v. Town of Lake, 127 Ill. 54, 20 N. E. 38; Cochran v. Village, 138 Ill. 295, 27 N. E. 939; Maywood v. Village, 140 Ill. 216, 29 N. E. 704. It is said that there'is-'a legislative construction in conflict with the foregoing by reason of chapter 37, p. 28, Acts 30th Gen. Assem. 1904. That statute expressly conferred the power, but at a date subsequent to the statute. I fully appreciate the force and weight to be given such construction. But we all know that many statutes are enacted to get rid of conflicting holdings of the courts. Others are enacted to make clear that which is in dispute, and just such disputes as we have in the case at bar. Sutherland on Statutory Construction, § 311, says: •
“Legislative 'contraction of old laws has no judicial force'. Whether right, or wrong the courts must determine the proper interpretation from the statutes themselves; 'A'practical construction of a statute of doubtful meaning,*625 long continued and acquiesced in, and which has operated as a rule of property, and under which many important rights have accrued, will seldom be disturbed.” Crawfordsville v. Braden, 28 N. E. 849, 130 Ind. 149, 14 L. R. A. 268, 30 Am. St. Rep. 214; Elliott on Streets, par. 469.
In my opinion the late statute is declaratory of what was regarded as the law by the courts. The contract in suit does not relieve the company from taxation, a scheme so denounced by Justice Miller in speaking for the Supreme Court in Topeka v. Loan Association, 20 Wall. 655, 22 L. Ed. 455. The company was to be taxed, but a credit of like amount was to be made on the obligation. And this plan was upheld by the Iowa'Supreme Court in case of Grant v. City of Davenport, 36 Iowa, 396. The Iowa Supreme Court has adhered to that holding many times since, and the courts of other states have many times followed it.
Without discussing the many questions further, I am content with the foregoing.
The several demurrers will be overruled.