Witter v. Board of Supervisors , 112 Iowa 380 ( 1900 )

Si-ierwin, J.

3 The plaintiffs David P. Witter and C. O. Nourse assail the curative act‘as unconstitutional, and allege as grounds therefor that it is intended to confer upon the board of supervisors of Polk county alone the following powers: First, the power to levy a special tax for county purposes for the next 20 years; second, the power to purchase real estate exceeding $2,000 in value, in violation of the general laws of the state, which forbid the exercise of that power; third, the power to create a debt and to issue evidence of indebtedness of a tenor and nature not authorized by any existing statute, and not permitted to be issued by any other county of the state-. The plaintiffs concede “the general proposition that a curative act is valid in cases where there has been a defective or irregular exercise of a power already conferred, and that the legislature may cure such defects as it might originally not have required.” To determine the effect of this curative act upon the questions presented to us by the appeals is the duty to which we first direct our attenion, and to properly do this it is necessary to first determine what power, either express or necessarily implied, was lodged in tin-board of supervisors by the law as it existed at the time the act was passed.

The first sections of the statute bearing upon this subject are as follows: Subdivision 9 of section 422 of thcCode gives the board of superviors power “to purchase for the use of the county any real estate necessary for the erection of buildings for county purposes.” The general power granted by this section is limited by section 423, the material part of which is in the following language: “The board of supervisors shall not order * * * the purchase of real estate for county purposes exceeding two thousand dollars in value, until a proposition therefor shall have first been submitted to the legal voters of the county, and voted for by a majority of all persons voting for and against such proposition at general or special election, notice of the same being given for thirty days previously in a newspaper, if one be published in the county.” Section 422 confers upon the board of supervisors express power to purchase real estate upon which to erect a court house, but the amount which may be used for this purpose cannot exceed $2,000, unless directly authorized by a majority of the legal voters of the county. The board, having the power under the statute to purchase within the expressed limits, needed only the authority of a majority of the voters of the county to extend this power to the purchase of a site costing $100,000. This authority was conferred by the vote at the special election of January 25, 1899, unless there was s.omo fatal defect in the procedure submitting the proposition, of which we shall say more hereafter.

1 Assuming, then, for present purposes, that full power had been given the board of supervisors to purchase a new court house site at a cost of not to exceed $100,000, we come to the next question which logically presents itself, and one which we deem it necessary to determine in arriving at a true solution of the questions before us, namely, does the power to purchase real estate for county purposes carry with it as an incident thereto the power to create an indebtedness therefor? We think it may be conceded that the legislature has not given the board of supervisors express power to incur indebtedness for the purchase of property for county purposes, but, the express power to purchase being given without any restrictions except such as may be removed by a vote of the people, and no particular mode of purchase being pointed out, we see no valid reason why the board may not, as a necessary incident to this power, create an indebtedness for the real property so bought. This principle was announced in the case of Mullarky v. Town of Cedar Falls, 19 Iowa, 21, where it is said: “It is first objected that the town as-a municipal corporation could not legitimately build such - a bridge, but when we look into the powers which its acts of incorporation under the laws of the state confer upon the town, its control of the streets, and its known duty to make the same so as to afford an easy and safe transit tí> all parts, we do not feel at liberty to doubt the existence of the power and its proper exercise in this case;. The bridge, in its construction, cost some $12,000 or .$15;Q00'. To meet this expense the town issued its warrants or notes in denominations of one, three, and five dollars. Its powers to do so are denied, hut, the object itself being legitimate, it becomes a necessary means to an end, and to do so was not an undue exercise of authority.” Under the provisions of section 1717 of the Code of 1873, this court held in Austin v. District, 51 Iowa, 102, that the district township had the power to incur indebtedness for the erection of a school house. It is said: “There is certainly no statutory inhibition upon a district township to prevent it from erecting a school house in advance of the collection of the taxes necessary to pay for it. It seems, indeed, that debts may be contracted in the erection of a school house in advance even of the levy of the necessary taxes.” This case, it is true, may be said to depend somewhat upon the statute cited, but sections 447-449 of the Code, relating to the powers and duties of the board of supervisors, in our judgment as clearly contemplate the incurring of indebtedness as did section 1717 of the Code of 1873.

Judge Dillon, in his work on Municipal Corporations, section 125, says: “Although a municipal corporation proper, in the execution of its ordinary corporate powers, and the discharge of its corporate duties, may make contracts and create debts, and may, when not restrained by statute, evidence the liabilities thus incurred, yet, if the instrument is made to assume the form of negotiable paper, such paper is always open to defenses in the hand of the transferees when it is used without the express authority from the legislature, or authority fairly to be implied from the charter or legislation applicable to the municipality.” Tiedeman on Municipal Corporations, section 182, says: “The current of decisions is running in favor of-the view that a municipal corporation may exercise any power that is suitable or needful to effectuate the business for which if is created, whether the power be expressly granted or must be. implied, ánd that in the implied power of a municipal corporation should be included the power to borrow money.”' The same doctrine is announced in the following cases: State v. Babcock, 22 Neb., 614 (35 N. W. Rep. 941) ; City of Williamsport v. Com., 84 Pa. St., 487; City of Richmond v. McGirr, 78 Ind., 192; Danielly v. Cabaniss, 52 Ga., 211; Allen v. Intendant, etc., 89 Ala., 641 (8 South. Rep. 30, 9 L. R. A. 497); Claiborne County v. Brooks, 111 U. S., 400 (4 Sup. Ct. Rep. 489, 28 L. Ed. 470). If, then, under the express power given the county to purchase real estate, the power to create an indebtedness therefor follows as a necessary incident to the exercise of such power, may the county issue its non-negotiable evidence of such indebtedness? We are clearly of the opinion that this inquiry must, from the very necessities of the case, be answered in the affirmative. It would be idle to say that the power to purchase on credit exists, and to then assert that no means may be employed to carry out this existing power, and in many instances completely tie the hands of the county, and indirectly deprive it of the power to create an indebtedness, and render it utterly impossible for it to make the permanent public improvements demanded, unless such improvements had been anticipated, and funds provided therefor in advance. To so hold would be illogical, and contrary to good business methods, and, in our judgment, antagonistic to the best interests of the taxpayers of the county. The board of supervisors is the agent of the county; and where it has been authorized by its principal, either by express power conferred by law, or by the power necessarily, implied from such express power, to do certain things for the benefit of the principal, it should be held to have the power to carry on the business in hand, as would a private person, using therefor business methods and resorting to such means as are recognized as legitimate in the business world. In other words, no valid reason can be given why a board of supervisors should not transact the business of the county along well-established business lines, when it has power to do it at all. Clark v. Janesville, 10 Wis., 136; State v. Common Council of Madison, 7 Wis., 688; Ketchum v. City of Buffalo, 147 N. Y., 356; Clark v. School Directors, 78 Ill., 474, and cases supra. If the foregoing views are correct, it needs no argument or citation of authorities to sustain the proposition that a tax may be levied to pay the lawful indebtedness thus created. And, if this may be,done, •why may not the board extend the period of taxation so that the future shall bear a part of the burden created by this extensive permanent improvement ? If it be 'conceded for the purpose of argument that the statute does not specially provide for extending the period' of taxation as in the case of the erection of buildings, we find no reason why this may not be done if it be the expressed wish of the voters of the county. 1 The law does not prohibit it, and the expenditure of so large a sum for ground upon which to build a court house is an extraordinary one, which could not ordinarily be met without a' special tax therefor. We think the board of supervisors, as the agent of the county, might well submit to its principal the question as to how and when the funds should be raised to pay for the ground about to bo purchased, and that, when so advised, it could proceed accordingly, if to do so would not be in contravention of the statute.

5 We come now to a consideration of the curative act passed by the Twenty-eighth General Assembly. We have already determined that the county had the power before the passage of this act to create an indebtedness for the purchase of real property upon which to build a court house, and to evidence its indebtedness by some form of non-negotiable instrument. What was there, then, for' the act to reach as a healing measure ? Olearly, no vital question as to the power of the county, for this power, 'as already stated,' it then had. Every question contained in the' proposition submitted to the voters at the' special election of January, 1899, except the question of the issuance of bonds, was one which might lawfully be submitted to the voters for their determination, and these •questions being answered in the affirmative gave the board of supervisors undoubted power to do all they asked, with the exception above stated. The real effect, then, of the act was merely to cure any defect in the form of the procedure or in the method of placing the proposition before the voters. It conferred no power upon Polk county. The power that we hold Polk county then had was common to all the counties in the state; hence the act is not in violation of either article 1, section 6, or of article 3, section 30, of the constitution of the state, and did no more than is con■cededed it might do. The general rule is thus laid down by Mr. Sutherland in his work on Statutory Construction (section 483) : “The rule in regard to curative statutes is that if the thing omitted or failed to be done, and which constitutes the defect sought to be removed or made harmless, is something which the legislature might have dispensed with by previous statute, it may do so by a subsequent one. If the irregularity consists in doing some act, or doing ii in the mode which the legislature might have made immaterial by a prior law, it may do . so by a subsequent •one.” It is also so held in Boardman v. Beckwith, 18 Iowa, 292;.State v. Squires, 26 Iowa, 340 Rickman v. Supervisors; 77 Iowa, 517; Tuttle v. Polk, 84 Iowa, 12; Windsor v. City of Des Moines, 101 Iowa, 343; Windsor v. City of Des Moines, 110 Iowa, 75.

6 The remaining question- to be determined is whether the coitnty may issue negotiable bonds for the debt’ created in the purchase of a court house site. It will be noticed that no such authority was attempted to be given in the curative act we have just considered. It is contended by the county, however, that express power ■so to do is conferred by sections 447 and 448 of the Code, and that the power to issue bonds for the erection of a public building was also intended to include the ground upon which it is situated. A careful examination of the statute covering the entire subject leads us to a different conclusion. We think the two sections relied upon do not confer express power to issue bonds for the purpose contended, nor will they, either singly or together, bear the construction contended for on the other point. If the legislature had intended to give the county such power, or if it had intended to include the necessary ground upon which the building must stand in the provision permitting bonds to be issued for the erection of the court house, it could certainly have made its intentions and meaning clear by the-use of but few additional words.

It is further contended that the necessary power to issue bonds in cases of this kind should be implied. If we-deemed this an open question in this state, it is possible-that we might consistently so hold, following to its logical conclusion the holding that the county may create an indebtedness and pay the same by a tax levy extending over a term of years; but we are precluded from so doing by former decisions of this court. Clark v. City of Des Moines, 19 Iowa, 199; Dively v. City of Cedar Falls, 21 Iowa, 569; Heins v. Lincoln, 102 Iowa, 69. In the case of Ileins v. Lincoln the city attempted to issue bonds in payment of warrants issued for the current expenses of the city, and, it is said, can be distinguished from the case at bar on that account; but the general question of the implied power of a municipality to issue its negotiable bonds was fully discussed, and the language of other courts holding that such power cannot be implied for any purpose cited with approval, and the language of the opinion is such that we think the desired distinction cannot be made. What was said in Hull v. Marshall County, 12 Iowa, 142, was in tile-way of discussion only, and did not decide any question in the case. The decrees of the district court are modified and affirmed in accordance herewith. — Modified and AFFIRMED.

Granger, C. J., not sitting.