169 Iowa 237 | Iowa | 1914
Prior to the happening of the matters complained of, the Charles City Western Railway owned and operated a steam railway from Marble Rock to Charles City, a distance of approximately 13 miles, and in the fall of the year 1913, it concluded to electrify this line, and to extend its road northeasterly from Charles City some nine or ten miles to the county line. Desirous of obtaining aid by taxation for the making of these improvements, it secured and presented a petition to the board of supervisors, to submit the matter to a vote of the residents of a district created by the petitioners. Finding the petition sufficient in form and substance, the board of supervisors called an election by the residents and prepared a ballot for the election formulated from the petition, and at the election called for the purpose the proposition was declared carried, and the board was about to certify the tax when plaintiffs, who are resident landowners and taxpayers within the district, commenced this action to enjoin the levy and collection of the tax.
The propositions relied upon to defeat the tax are something like sixteen in number; but they revolve around a few central propositions which may be stated as follows:
(a) The petition for the tax and the proposition stated in the ballots was not a single one, but dual in character, and
(b) The propositions themselves were uncertain and insufficient in that they did not state the amount of money required for electrifying the old road and for the construction of the new line.
(c) The propositions were inadequate and insufficient in that they did not state what part of the new line should be constructed and what part of the old electrified before the tax was collected.
(d) The legislature had no power to authorize the establishment of taxing districts for voting aid to steam or interurban railways.
(e) The property in the proposed district was not classified according to benefits, and the tax was not uniform or according to benefits received.
(f) Not all the property benefited was included within the district.
(g) The provisions of 35 G. A., Ch. 169, if construed as contended for by appellants, are unconstitutional and void.
As the statute under which the defendant proceeded is new, and has never received a construction by this court, we quote therefrom as follows: '
“Sec. 1. Taxes not exceeding five per. cent on the assessed value of the real property of any district or territory contigu*241 cus to any projected trolley or electric railroad, or to any steam railroad which it is proposed to electrify, may be levied to aid in the construction of such projected trolley or electric railroad, or in the electrification of such steam railroad, within the state, as hereinafter provided.
“See. 2. "When it is proposed to construct any trolley or electric railroad, or to electrify any steam railroad, and a petition definitely describing any district or territory contiguous to and within five miles of the line of such railroad or proposed railroad, signed by a majority of the resident freehold taxpayers, of such district or territory, asking that the question of aiding in the construction or electrification of such railroad or proposed railroad within such district or territory, be submitted to the voters thereof, is presented to the board of supervisors of the county in which such district or territory is situated, it shall be the duty of such board of supervisors immediately to give notice of a special election by publication in some newspaper published in such district or territory, if any there be, and if not, then in some newspaper published in the county, and also by posting .copies of said notices in five public places in such district or territory at least ten days before such election, which shall state the time and place of holding the same, the name of the company and the line of the road proposed to be added, the rate per cent of the tax to be levied; whether one-half thereof shall be collected the first year and one-half the following year, or whether the whole is to be collected in one year, the amount of work required to be done, and when and where the same shall be done, to what point said railroad shall be fully completed, and any other conditions which shall be performed before such tax or any part thereof shall become due, and in no case shall such tax become due until such railroad is fully completed according to the conditions of said notice. The board of supervisors shall cause to be prepared the form of the proposition to be submitted, and the proposition shall be printed and placed upon the ballots, and the board of supervisors*242 shall appoint the judges and clerks of election, and the election shall be conducted in the same manner as provided with respect to like or similar propositions in the chapter on elections, and the judges of election shall canvass the vote and make return to the county auditor, and if a majority of the votes polled be for the adoption of the proposition, then the county auditor shall forthwith certify to the result thereof, rate per cent of the tax voted, the year or years during which the same is to be collected, the name of the company to which voted, and the time, terms and conditions upon which the same when collected is to be paid under the conditions and stipulations in said notice, together with an exact copy of the notice under which the election was held, which the county auditor shall at once cause to be recorded in the office of the recorder of deeds. The expense thereof and of publishing the notice and all the expenses of the election shall be paid by the railway company to which it is proposed to vote the tax. "When such certificate-has been made and recorded the board of supervisors of the county shall'at the time of levying the ordinary tax next following, levy such taxes as are voted under the provisions hereof as shown by said certificate, and cause the same to be placed on the tax lists of the proper township, town or'city, indicating in their order thereupon when and in what proportion the same are to be collected, and upon what conditions the same are to be paid to the railway company, a certified copy of which shall accompany the tax list. The taxes shall be collected at the time or times specified in the order and in the same manner and subject to the same laws after they are collectible as other taxes, or as may be stated in the petition and notice for the election, except as otherwise provided; provided however, that such tax shall only be levied upon the real property within such district or territory. The stipulations and conditions in the notice prescribed in this section must conform to those set forth in the petition asking for the election, and the aggregate amount of taxes*243 voted in any sucb district or territory shall not exceed five per cent of the assessed value of the real property therein.
"Sec. 3. The provisions of Sees. 2087, 2090 and 2091 of the supplement to the code, 1907, are hereby made applicable to all taxes levied under the provisions of this act.”
The petition presented to the board was in substance as follows:
“To the Board of Supervisors of the County of Floyd, State of Iowa.: The undersigned petitioners representing a majority of the resident freehold taxpayers of that certain District lying wholly within Floyd County, Iowa, and hereinafter definitely described, do hereby respectfully petition your Honorable Body that you cause to be submitted to the voters of said District the question of voting a tax of five per centum on the assessed value of all the real property within said District for the purpose of aiding in the' electrifying by the Charles City Western Railway Company of that portion of its present line of railroad extending from the west line of Section 2, Township 94, Range 17, West of the 5th P. M. a point near Marble Rock, in said County, northeasterly to and within the City of Charles City, in said county, and the construction by said Charles City Western Railway Company of a trolley or electric railroad -from its present terminus in said City of Charles City, northeasterly to a connection with the Chicago Great Western Railway, all as provided by Chapter 169, of the laws of the 35th General Assembly of Iowa, entitled, ‘An Act to enable benefited property to aid in the construction of trolley or electric railroads or the electrification of steam railroads, being additional to Chapter 5 of Title 10 of the Code as amended.’
“It is provided that the aid to be voted for is on the express condition that no part of said money shall be drawn from the treasury by said Charles City Western Railway Company until said described portion of its present steam line, of railroad is fully electrified, and said proposed trolley*244 or electric railroad fully completed northeasterly from Charles City to a point near the center of the north line of Section 32, Township 96, Range 15, West of the 5th P. M., in said county, when one-half of the said tax shall be paid to said Company as soon as same may be legally collected, and the last half of said tax shall become due and payable when said trolley or electric railroad shall be fully completed northerly and northeasterly from said north line of Section 32 via Niles to and across the Little Cedar River to a point near the northeast corner of Section 10, Township 96, Range. 15, West of the 5th P. M., in said County, and within the' District hereinafter described, and* on the further express condition that the first part of said work, required to be done, shall be completed by the first day of July, 1915, and said last part of said work, required to be done, shall be fully completed by November 1st, 1915.
“The district above referred to and within which you are requested to submit to the voters thereof the question hereinbefore mentioned shall be that District definitely described as: (here follows the description of the lands). All of which District lies wholly within Floyd County, Iowa, and contiguous to and within five miles of the line of railroad or proposed railroad which it is hereby proposed to aid.”
The board made an order granting the petition and ordering an election, and also gave notice of an election which included a copy of the petition in haec verba. At the election the following form of ballot was prepared by the board and used by the electors:
OFFICIAL TAX PROPOSITION BALLOT.
Special Election, January 3, 1914.
NOTICE TO VOTERS. For an affirmative vote upon any question submitted upon this ballot, mark a cross (X) mark in the square after the word “YES.”
For a negative vote make a similar mark in the square following the word “NO.”
Shall a tax of five per cent (5 per cent) on the assessed value of the real property of that certain district definitely described in the petition referred to and set out in the notice of this special election, be levied to aid in the construction of the projected trolley or electric railroad projected by the Charles City Western Railway Company, a corporation organized under the laws of the State of Iowa, and to aid in the electrification of the portion of the line of steam railroad* of said Charles City Western Railway Company, situated in said district, being the same projected trolley or electric railroad* and- the same portion of the line of steam* railroad of said Railway Company referred to and specified, in said' notice of election, said tax to be collected at the time or times therein specified, and to become due and payable to said Railway Company at the time or times and upon the conditions as specified in said notice. YES NO
An election was held; thereat 1,233 votes- were cast in favor of the proposition, and 877 against, a majority of 356 being in favor of the tax.
The district as formulated by the petitions and as approved ‘by the board is shown by the attached plat. This plat also shows the old line of road and the part to be newly constructed. It also shows the five-mile limit.
It will be observed that the district lines do not correspond with the five-mile limit, and-that some of the land adjacent to the old line of road is not included within’ the district. There is no charge of fraud in the petition, but it is asserted that the district was arbitrarily formed, that it does not include all the land benefited, and that there is no gradation o-f benefits.
“We had a good reason why we did not want to take in the town of Marble Rock; it was not because we thought, if we did, that it would not carry, that was not the reason. . . . The reason for stopping the taxing district two miles this side of Marble Rock was that the people of Marble Rock were interested in having the road extended further Southwest, which had been discussed considerable, and for the reason that with such an extension a new taxing district would be laid out including Marble Rock and the vote for the Southwest. And, therefore, this taxing district was stopped two miles from Marble Rock with the understanding that when it came to the extension of the road to the Southwest, this would be a new taxing district, in which they would be included. We did not want to include them in both, and as I understand, we could not if we did want to, within ten years.”
The tax is in aid of a public improvement, — a railway or interurban railway being treated as a highway, specially benefiting those within the sphere of its usefulness, — and all such property within the proposed district is regarded as specially benefited and, under certain conditions, liable to the tax. It is perfectly legitimate for the legislature to fix taxing districts or to delegate this power to other bodies' or persons, and in the absence of fraud or gross abuse of discretion, such
• Moreover, as the tax is a flat one, not graduated according to benefits, it is difficult to see how plaintiffs were prejudiced by the fact that not all within the five-mile limit was included. The explanation given for not including some of the property near Marble Rock is not contradicted, and if it were, but one other possible motive can be suggested, and that is that as the owners of the omitted lands near Marble Bock had adequate facilities they would vote against the proposed tax and might thus kill the whole project. This suggestion is two-edged. If they were in fact not benefited and so would be led to vote against the entire proposition, then they should not, on appellees’ theory, have been included for the reason that they received no benefit from the project. Furthermore, it is difficult to see how the plaintiffs were prejudiced by the non-inclusion unless on the theory that the votes of the owners of these lands would have been against the tax proposition and if included they would have converted a majority into a minority.
The presumption is that the district was properly formed, and as a rule the action of a body properly authorized to create an assessment district is conclusive in the absence of
The tax is not for the cost of the improvement, but in aid of the establishment of a highway, and the entire burden is not thrown upon those specially benefited. Within the five-mile limit all the lands may be taxed at a fiat rate, and this, as it seems to us, is within the power of the legislature.
Suffice it to say that the law does not require a statement as to the cost of the whole or any part of the improvement. There is no necessity for such a statement, and as none is required by law, courts are not justified in requiring it.
The use of a disjunctive word in a statute does not imply that the conjunctive was not intended. Barker v. Esty, 19 Vt. 131; Winterfield v. Stauss, 24 Wis. 394; Sparrow v. College, 77 N. C. 35; Rigoney v. Neiman, 73 Smith (Pa.) 330.
Of course if tbe roads were separate and independent propositions, and it was not intended to make a single electric line, appellees’ contention would be sound. But according to tbe weight of authority-and sound reason, if but a single road, electric or trolley line is contemplated, tbe fact tbat it involved tbe conversion of an old steam road by electrification into a part of tbe system does not make tbe proposition dual in character. If, for any reason, parties within tbe district served by the old line did not care to have it become a part of a system of electric road extending some nine or ten miles beyond tbe terminus of tbe old line, or did not wish to have it electrified at all, it was within their power to so express themselves by voting against tbe entire proposition; and in the same manner those living in proximity to tbe line to be newly constructed could indicate their choice. Unless tbe proposition involves incongruous purposes which cannot naturally and reasonably be said to be a part of one general plan or scheme, there cannot be said to be such a blending of tbe two as tbat they must be submitted separately. Coleman v. Eutaw, 157 Ala. 327, 47 So. 703; Kemp v. Hazelhurst, 31 So. (Miss.) 908 Cary v. Blodgett, 102 Pac. (Cal.) 668; Seymour v. Tacoma, 32 Pac. (Wash.) 1077; Oakland v. Thompson, 91 Pac. (Cal.) 387; Lain v. Omaha, 107 N. W. (Neb.) 983; L. & N. Ry. v. County, 62 Am. Dec. (Tenn.) 424.
These cases bold, in effect, tbat although there may be two parts of a proposition, if such parts make one connected whole, the scheme is not a dual one. For example, in one of tbe cases, a proposition to build a fire engine house in one part of a city, and another in a different part upon a lot to be purchased for that purpose,- was held not dual in character. Lain v. Omaha, supra. Again, a proposition to construct two wagon roads was held single in character. People v. Counts,
Of course, there must be one general related scheme— one general improvement — else it will be dual in character. But if there be but one object in view, the fact that it involves reconstruction as well as construction does not make the proposition dual. Coleman v. Eutaw, supra; State ex rel. Chillicothe v. Wilder, 98 S. W. 465; L. & N. Ry. v. County, 1 Sneed (Tenn.) 637; Lynch v. R. R., 15 N. W. (Wis.) 743; U. P. R. R. v. County, 3 Dillon 359; State v. Allen, supra.
We copy the following from our own eases as illustrative of the doctrine here announced.
In Rock v. Rinehart, 88 Iowa 37, the proposition was:
“Shall the board of supervisors . . . contract for the erection of a courthouse ... at a cost not to exceed the sum of fifty thousand dollars, from the proceeds arising from the sale of the lands belonging to said county, lying in the counties of Ida and Cherokee.
“The appellants contend that two separate and distinct propositions are contained in this ballot, so joined that a vote for one necessarily resulted in a vote for the other, namely: ‘ Shall the board of supervisors of Iowa County be authorized
In Brooks v. The Town of Brooklyn, 146 Iowa 136, the ballot was:
‘ ‘ Shall the following public measure be adopted, to wit:
“Shall the contracts approved by the town council in relation to the erection of a town hall be adopted, as follows: (Here are set out the contracts).
“The case presents two questions: The first being the sufficiency of the ballot; and the second, the nature of the building which the town proposed to erect. Two contracts were presented to the voters for approval; but the elector, by the form of ballot used, had to vote for or against both contracts. He could not vote for one and against the other, save as he by reason of his objection to one should vote against both. Did this invalidate the election? Because but one*255 object was sought, viz., the building of a town hall, the question under the rule announced in Rock v. Rinehart, 88 Iowa 37, must be answered in the negative. If the voter did not wish to have the town hall erected, he would vote in the negative. If he thought that one of the contracts was bad he would also vote no and as said in Bock’s ease, ‘A careful reading of the ballot under consideration, in the light of facts connected with the election, shows marked distinction between this and the eases cited. There is but one object — the erection of a courthouse — while in those eases there were two or more. Following Gray v. Mount, supra (45 Iowa 591), we must say that, there being but one object, there was but one proposition.’ ”
This is the rule we now follow.
IN. It was unnecessary, in this view, to state separately the propositions for electrification and for construction and electrification, as there was but one object — the construction, maintenance and operation of a single line of trolley or electric road, from Marble Rock through Charles City and northeastward nine or ten miles, as already stated. If appellees were correct on their other main proposition they would be correct on this last one; for one depends upon the other. Finding them incorrect on the question of duality, they must be wrong here.
For the reasons stated, the decree must be, and it is— Reversed.
