France v. City of Des Moines

I. Appellant's complaint is based upon the contention that, at the time the contract between the defendant city and Horrabin was entered into, the outstanding indebtedness of the city exceeded 11/4 per centum of the actual value of the taxable property within said city, and that the contract creates an indebtedness in excess of the city's authority, and void.

The city of Des Moines is a city of the first class; and, prior to the enactment of Sections 758-d and 758-e by the thirty-fourth general assembly, in the matter of bridges possessed only the authority conferred thereon by Section 758 of the Code of 1897 and Section 758 a of the 1913 Supplement thereto.

As this appeal involves a construction of Sections 758-d, 758-e, and 1306-b of the Supplement to the Code, 1913, we copy the same in full:

"Section 758-d. That cities of the first class are hereby authorized to contract indebtedness and to issue bonds for the purpose of constructing bridges. Such bonds shall be payable in not exceeding twenty annual installments and bear interest at not exceeding five per centum per annum, and shall be made payable at such place and be of such form as the city council shall by ordinance designate. But no city shall become indebted in excess of five per centum of the actual value of the taxable property of said city as shown by the last preceding assessment roll."

"Section 758-e. This act shall be construed as granting additional power without limiting the power already existing in cities of the first class."

"Section 1306-b. No county or other political or municipal corporation shall be allowed to become indebted in any manner or for any purpose to an amount exceeding in the aggregate the amount of one and one-fourth per centum of the actual value of the taxable property within such county or corporation, except that cities and incorporated towns may for the purpose of purchasing, erecting, extending or maintaining and operating waterworks, electric light and power plants, gasworks and heating plants or of building and constructing sewers, incur an indebtedness, not exceeding in the aggregate, added to all other indebtedness, five per centum of the actual value of the taxable property within such city or incorporated town. The amount of such taxable property shall be ascertained by the last state and county tax list previous to the incurring of such indebtedness."

Sections 758 of the Code and 758-a of the Supplement conferred authority upon cities to incur indebtedness, or issue bonds, for the construction of bridges within certain narrow limits only. General power to incur indebtedness and issue bonds for the purpose of constructing bridges was first conferred by the provisions of Section 758-d.

The authority of counties and cities to incur indebtedness, in any manner and for all purposes, is limited by Section 1306-b to 1¼ per centum of the actual value of the taxable property thereof, except for certain designated purposes, therein fully set forth.

The contention between counsel at this point is as to whether the power conferred upon cities of the first class by Section 758-d, which, by Chapter 184 of the Acts of the Thirty-sixth General Assembly was extended to cities of the second class traversed by streams not less than 200 feet in width from shore line to shore line, must be exercised within the 1¼ per centum limitation; or whether indebtedness therefor may be incurred, when added to all other outstanding indebtedness, under the provisions of Section 758-d, to the extent of 5 per ceutum of the actual value of the taxable property of such city or incorporated town.

By act of the twenty-eighth general assembly (Chapter 41), the authority of cities and towns to incur indebtedness was first limited to 11/4 per centum of the actual value of the taxable property thereof. The thirtieth general assembly (Chapter 43) repealed the act of the twenty-eighth, and fixed the limit at 2½ per centum, but authorized them to purchase, or erect, waterworks and sewerage systems. This enactment was repealed by the thirty-first general assembly (Chapter 49), and the 1¼ per centum limitation restored; but cities and incorporated towns were authorized to incur indebtedness in excess thereof "for the purpose of purchasing, erecting or maintaining and operating water-works, electric light and power plants, gas works and heating plants or of building and constructing sewers, * * * not exceeding in the aggregate, added to all other indebtedness, five per centum of the actual value of the taxable property within such city or incorporated town. The amount of such taxable property shall be ascertained by the last state and county tax list previous to the incurring of such indebtedness."

The thirty-seventh general assembly (Chapter 85) amended Section 1306-b by striking therefrom the words "or for any purpose," and inserting in lieu thereof the words "for its general or ordinary purposes." Evidently, the limitation placed by the legislature upon the power of counties and political and municipal corporations to incur indebtedness was for the purpose of preventing waste and extravagance in the expenditure of the funds belonging there-to, and for the same purpose is retained, but given a some-what enlarged application by the amendment of the thirty-seventh general assembly (Chapter 85), referred to above. The rapid growth of cities and incorporated towns in population and industry necessitated better sanitary regulations and other improvements, such as heating, electric light and power plants, waterworks, gas works, and other public improvements of like character; but the expense of these could not be met, within the limit fixed by the legislature for cities in the matter of incurring indebtedness. Further authority to incur indebtedness was required. The 11/4 per cent limitation was retained; but, as appears from the above extract from the Acts of the Thirty-first General Assembly (Chapter 49), the authority of cities and incorporated towns to incur additional indebtedness for certain purposes was very much enlarged.

It is the contention of counsel for appellee that Sections 758-d and 758-e, supra, were enacted by the thirty-fourth general assembly for the purpose of enabling cities of the first class which are traversed by large streams to erect necessary and indispensable bridges for the accommodation of traffic and other necessities of modern city life; and that it was not intended that the power therein conferred should be exercised only within the narrow limitation of Section 1306-b, but, as in the case of electric light, heating and power plants, sewers, etc., in excess thereof. Section 758-e provides that Section 758-d "shall be construed as granting additional power without limiting that already existing in cities of the first class."

Prior to the enactment of the above sections, cities had authority to construct bridges; but their resources for that purpose were very limited. The power conferred by Section 758-d is to contract indebtedness and issue bonds for the purpose of constructing bridges. As we understand their argument, counsel for appellant concede this, but vigorously contend that it must be exercised within the 1¼ per centum limitation provided by Section 1306-b. The power conferred upon cities by the latter section is to contract certain indebtedness, within the 11/4 per centum limitation therein contained, and certain other indebtedness in excess thereof. If the power to incur indebtedness for the purpose of constructing bridges is to be exercised within the limitation of Section 1306-b, then it is not additional thereto. The power to contract indebtedness for the construction of bridges is for a new and independent purpose, — one not previously existing. Unless the power thus conferred was intended by the legislature to be exercised in addition to that already existing, as is plainly declared by Section 758-e, there could have been no reason for the enactment of Section 758-d. It is true that the limitation fixed is the same as that fixed by the Constitution; but it will be observed that it is quite common for the legislature, following a grant of power to cities and municipal corporations to incur additional indebtedness, to provide that such power shall not be exercised in excess of 5 per centum of the actual value of the taxable property thereof. While the latter provision of Section 758-d is prohibitory in form, it impliedly permits cities to incur indebtedness for bridge purposes up to the 5 per centum limitation; provided, however, and as a matter of course, that all other indebtedness must be taken into consideration at the time of contracting indebtedness for bridge purposes; and the total indebtedness therefor, when added to all other indebtedness of such city, must not exceed the statutory and constitutional limitation.

The evident purpose of the legislature was to make such provision as would enable cities traversed by streams requiring bridges which would involve the expenditure of large sums of money, to construct larger and more expensive bridges than was possible under the law as it then was. Authority had already been conferred upon them to construct and acquire waterworks, electric light and power plants, sewerage systems, and many other modern public conveniences and necessities. Further power was necessary, to enable them to provide funds with which to erect bridges. The legislature was careful, in conferring power upon them to contract indebtedness and issue bonds for that purpose, to declare the same additional to that already existing to incur indebtedness for other purposes.

It is urged by counsel for appellant that, had it been the intention of the legislature to enlarge the power of cities to contract indebtedness and issue bonds for the construction of bridges up to the full constitutional limit, it would doubtless have so specifically designated. There is no doubt that an additional word or two would have made the construction and application of these statutes clear and easy; but we have no doubt that it was the legislative purpose to confer new and additional power upon cities to incur indebtedness for the construction of bridges, in addition to that already existing to incur indebtedness for other purposes, and that the same may be exercised without reference to the provisions and limitations of Section 1306-b. The tendency of the legislature to confer power upon cities to provide necessary public improvements is further emphasized by the provisions of Chapter 85, Acts of the Thirty-seventh General Assembly, amending Section 1306-b so as to make the 1¼ per centum limitation apply only to indebtedness incurred "for its general or ordinary purposes."

Other interesting questions are discussed by counsel; but, in view of the construction we have given to the above statutes, it is unnecessary for us to discuss or decide them. It therefore follows that the judgment of the court below is — Affirmed.

PRESTON, C. J., LADD, WEAVER, EVANS, and GAYNOR, JJ., concur.