11 Iowa 482 | Iowa | 1861
The plaintiffs filed their petition in the District Court of said county, under the provisions of sections 19-27, of the act of 1858, chapter 157, praying to have certain property on which they resided stricken from the limits of the city of Mt. Pleasant. The facts stated in the petition are not disputed but are admitted by the demurrer. Without referring to the technical objections discussed by. counsel as to the sufficiency of the demurrer to raise the questions passed upon by the court, we propose to consider, atoncethetwo questions that are decisive of the whole case.!
Do the provisions of the sections above referred to apply, to cities incorporated when such act was passed, or to cities, incorporated exclusively uador the provisions of said act ?t The city of Mount Pleasant was incorporated prior to the passage of said act, and the plaintiffs’ property was within the corporate limits of said city. By section 1 of said act it is declared “ that none of the provisions of this act shall apply to cities and toivns already incorporated, otherwise than as herein provided, save and except sixty-one of this act.” Do the provisions of sections 19-27 apply, to the city of, Mount Pleasant as a city already incorporated when this, act was passed ? From the words used in this first section,, it is evident that the legislature intended that some portions, of the act, besides section 61, should apply j¡p cities.already.
The provisions of this section are so general that it must have been the intention of the legislature to have them apply to old as well as new cities. The word “ any,” is general in its signification; and had the legislature intended to have limited the provisions of said sections to new cities alone, (and as the preceding sections were in relation to new cities,) the word, “any,” wrould not have been used. There Could be no doubt about the proper construction of this section, were it not for the prohibition in the first section of the act. • But even under this section, it must bo conceded, that some portions of the act related to cities then incorporated. The portion of the act under which plaintiffs seek relief could as well be applied to old cities as any of the sections of said act. It is conceded that sections 107-110 relate exclusively to old eities. Do not these sections indicate an intention on the part of the legislature to make the provisions of the whole act apply to cities organized prior to that time? Why do they say, in section 107, that “all rights, and property of every kind and description which were Vested in a municipal corporation under its former organization, shall be deemed and held vested in the same municipal' corporation under the organization made by this act: * * * * ¿or shall rights or liabilities be affected by such change?” Why in the following sections, 108-9-10, do they refer to a former organization, and provide for a change of government from the old incorporation to new ones ? We do not
We are led to conclude that the sections referred to apply to old as well as new cities, not only from the words used in said sections, and for the reasons above stated, but we think that there is an express provision, in section 107 of this act, that grants this remedy to the inhabitants of an old .city. After providing for a change in the organization of old cities, to conform with the provisions of this act, it is further provided, “that no right or liabilities either in favor of or against such corporation existing at the time of taking effect of this act, * * * shall in any manner be affected by such change. But the same shall stand or progress the same as if no change had been made, provided, that where a different remedy is given by this act, which can properly be .made applicable to any right existing at the time of its .passage, the same shall be deemed cumulative to the remedies before provided and may be used accordingly.” Section 107. Apply this provision to the case at bar. The plaintiff had a right against the city of Mount Pleasant .existing at the taking effect of this act; .it stood the same as if no change had been made. The plaintiff, had a remedy under the Code of 1851, different from that given by this act. Under sections 643-648 of the Code, they could have had a portion of the city vacated; such remedy could properly be made applicable to the right of plaintiffs existing at the passage of the act of 1858. Then the remedy of plaintiffs under the sections 19-27 is by the provisions of section 107, deemed cumulative to the proceeding under the Code, and may be used accordingly. To what other remedy could the proviso of section 107 more fully apply than the remedy provided for in the sections under consideration.
The provisions of the new constitution upon this subject are different from those of the old; the latter more restrictive than the former. See article 3, section‘29, of the new constitution, and article 1, section 26 of the old.
This constitutional difficulty has been 'fully discussed by. this court in the case of The State v. County Judge, 2 Iowa 280, and settled against the position of counsel for defendant. In the case of Morford v. Unger, 8 Iowa 83, this question is also considered by this court; and an act of the legislature enlarging the city of Muscatine, bearing the title of “ an act to amend an act incorporating said city,” was held not to contravene this provision of the constitution. The subject of legislation was in that case the enlargement of the city limits, while it was claimed, the title of the act referred to another branch of legislation. The question determined in that case is analagous to the one now under consideration, and the provisions of the new constitution, under which the act of 1858 was passed, are less restrictive than the former.
Reversed.