Loading...
HomeMy WebLinkAboutA002 - Legal Opinion dated October 8, 1981 city of AMES, Iowa 50010 LLL��� (515) 232-6210 F!LED CITY CLERK y pF AMES.IOWA October 8, 1981 Hon. F. Paul Goodland, Mayor �QCT 8 19� and Members of the City Council Ames, Iowa 50010 Re: Hinders v. City of Ames utility sale proposition Dear Mayor Goodland and Council Members: With this find a copy of the court's decision in Hinders v. City of Ames. The court has ruled that the proposition as submitted August 11, 1980 is one which must be submitted to the voters pursuant to Section 388.2, Code of Iowa at the "next regular city election". Because the ruling in the case comes later than the last day on which nomination papers for the city election can be filed there is some question whether the matter will be submitted to the voters this fall under the specific mandate of 388.2, or be too late under the general rule of section 47.6 pertaining to the last date when notice can be given of a special elec- tion that is to coincide with a regular election. Needless to say, I find the court' s ruling a disappointment since the language of the statute indicated to me a legislative intent that the voters approval be required for the essential features of a proposal for disposition. However, the court sees the legislative intent to be merely to get general authorization to proceed with a disposition, the council or board of trustees to thereafter proceed as they would with respect to the disposition of any other item of unwanted city property. It is my advise that the council enact, at its noon meeting October 9, a motion to call the election and give notice to the county auditor. Respectfully submitted, John R. Klaus City Attorney JRK/mlp enclosure Combining Education and Industry with Hospitality OCT 8 1��1 IN THE IOWA DISTRICT COURT FOR STORY COUNTY THOMAS H. HINDERS, ) Plaintiff, ) Cause No. 30323 vs . ) CITY OF AMES, et al , ) O R D E R ) Defendants . ) This case is before the Court on an application for. the Court to adjudicate law points arising out of the plaintiff' s petition for writ of mandamus . Upon hearing, the plaintiff was personally , P y present and represented by his attorneys, Rex B . Gilchrist and -Dale E. Sharp. The defendants were represented by their attorney, John R. Klaus . FINDINGS OF FACT The facts which place. this case in its present posture are not disputed . In 1980, approximately 1 , 011 eligible voters of the city of Ames signed a petition requesting that the population of Ames be allowed to vote on the question of discontinuing the opera- tion of the city electric utility, and thereafter selling its lissets. This petition was filed with the City Clerk and the City Council on or about August 11 , 19:80 . The Council did not act on that request, and on June 15 , 1981 , a formal demand was made of the Council that it act upon the petition . No action was taken by the Council , and on June 22 , 1981 ,. plaintiff filed the petition for writ of mandamus. In responding to the petition, the defendants have counterclaimed for declaratory relief, and the parties agree that the pleadings as they presently stand raise a point of law which is crucial in the determination of the case . The parties have requested that the Court adjudicate whether or not the petition contains a valid -2- proposal within the meaning of Section 388 . 2 of the Code of Iol,aa (1981 ) . The plaintiff asserts that it is a valid proposal , while the defendants assert the proposal should fail on one of two grounds . First, the proposal should fail because it suffers from "duality , " and second, the proposal is not sufficiently specific in its terms as required by Section 388 . 2 of The Code . CONCLUSIONS OF LAW. I . THE ISSUE OF DUALITY. Plaintiff ' s action is grounded in Section 388 . 2 of The Code , which states as follows : "Submission to voters. The proposal of a city to establish, acquire, lease, or dispose of a city utility, except a sanitary sewage system, in order to undertake or to discontinue the operation of the city utility, or the proposal to establish or dissolve a combined utility system, or the proposal to establish or discontinue a utility board, is subject to the approval of the voters of the city, except that a board may be discontinued by resolution of the council when the city utility, city utilities, or combined utility system it administers is disposed of or leased for a period of over five years . "The proposal may be submitted to the voters at any city election by the council on its own motion. Upon receipt of a valid petition as defined in section 362 . 4 , requesting that a proposal be submitted to the voters, the council shall submit the proposal �at the next regular city election . "A proposal for the establishment of a utility board must specify a board of either three or five members . "If a majority of those voting for and against the proposal approves the proposal , the city may proceed as proposed . "If a majority of those voting for and against the proposal does not approve the proposal , 'the same or a similar proposal may not be submitted to the voters of the city for at least four years from the date of the election at which the proposal was defeated. " Defendants argue that plaintiff' s proposal is defective because it violates the single-purpose rule . It is asserted that the proposal is asking the voter to vote on two separate and distinct issues . -3- The first question is whether or not the City of Ames should discontinue operation of the city electric utility . The second question is whether or not the generating plant , all transmission lines and all other assets of the electric utility should be sold and disposed of. In Grove vs. City of Des Moines, 280 N1q 2d 378 , 384 , the objective of the single-purpose rule is set forth: . .The objective of the single-purpose rule is avoidance of logrolling--tying a strong proposition to a weak one to get the weak one through. This objective applies to both public and council voting. " In Grove, the city council proposed that the voters decide on whether to issue one set of bonds for a new parking ramp and whether to refund another set of bonds from another ramp. Even though the Court recognized the singular purpose was to get a new ramp built, the proposal really asked the voters to vote on two different issues. In Wyatt vs . Town of Manning, 217 Ia . 929 (1934) , the Court was called upon to determine whether or not a proposal ' put forth by the city council of the Town of Manning to establish, erect , maintain and operate a municipal electric utility was sufficient. The proposal, authorized the town to establish, erect, maintain and operate a municipal electric light and power plant with all the necessary equipment, with a maximum expenditure for the establishment of the utility not to exceed $135 , 000 . An inter- venor in the action, Iowa Public Service Company, argued that the proposition to the people was invalid because of duality . The Court concluded that there was no duality. In the Wyatt case , authority was asked to establish , erect, maintain and operate 3 municipal light and power plant . Following that , the proposition stated that the maximum expenditure for the establishment of the -4- utility would not exceed the sum of $135 , 000 . The intervenor complained that the electors would not know whether the $135 , 000 were to be expended for the establishment, construction , or acquisi- tion of the plant . The Court concluded that the cost limitation referred to the establishment and erection of the plant and that there could be no confusion under these circumstances . The proposal in the instant case states as follows : "That the City of Ames, Iowa, discontinue the operation of the city electric utility and that the city electric generating plant, all transmission lines, and all other assets of the electric utility, be sold and disposed of, all as provided under Section 388 . 2 , Code of Iowa. " In this Court ' s view, the proposition as stated does not violate the single-purpose rule . Section 388 . 2 of The Code refers to proposals "of a city . . . to dispose of a city utility. . . in order. . . to discontinue the operation of the city utility. " The statute, appears to tie together in one proposal the issues of disposal and discontinuance of the utility. Although the plaintiff ' s proposal transposes the order of the two actions, it appears to follow the dictates of the statute . It, therefore , follows that the proposal should not fail because of duality. II . THE ISSUE OF SPECIFICITY. Section 388 . 2. gives no cluels as to how specific a proposal must be . Iowa cases under the statutory predecessors of Section 388 . 2 all concern establishment, rather than disposal , of a city utility. Baird vs. Webster City, 130 N19 2d 432, 440 ( Iowa 1964 ) , appears to state the general rule : "A public measure should be sufficiently definite to apprise the voters with substantial accuracy of what they are called upon to approve . " -5- The Court , in Pennington vs . Fairbanks, Morse & Co . , 217 Ia. 1117 ( 1934 ) , rejected a proposal to establish a city utility because the proposal failed to set forth the manner in which the utility was to be financed. In McLaughlin vs. City of Newton , 189 Ia . 556 (1920) , the Court rejected a proposal for lack of specificity because it failed to set forth the complete contract of the franchise to be awarded upon a majority affirmative vote . In considering the issue of specificity, the Court is mind- ful of a statement made by The Court in the Baird case at page 442 : "Unless further circumstances appear, Section 397 . 6 casts a mandatory duty on the mayor to call the election on a proper petition of the voters enforceable by mandamus. An affirmative vote authorizes the council to act, but does not require it to act . " The fourth paragraph of Section 388 . 2 states as follows : "If a majority of those voting for and against the proposal approves the proposal , the city may proceed as proposed. " It would appear then that if plaintiff prevails on the applica- tion to adjudicate law points and the proposal is placed on the ballot, approval of the proposal by the voters authorizes the City Council to take action concerning the city utility, but does not require them to do so. ' In Iowa Public Service Co. vs . Tourgee , 208 Ia . 36 , 43 ( 1929) , the Court discusses the effect of an authorizing vote concerning an electric utility. That discussion is as follows : "Obviously, it is the intent and purpose of the legislation aforesaid (Sections6128 , 6131 and 6132 of the 1927 Code of Iowa) that an electric franchise ordinance shall be under the complete control and discretion of the city council , except that it is necessary for the voters to approve or authorize the same . Enactment is not made by the voters. They simply approve or authorize , and the council enacts. It is contemplated by Section 6131 , supra, that the city shall not grant a franchise until voted on favorably by the people ; not that it is granted if the vote of the people favors it . A double safeguard is thereby provided . " -6- In this Court ' s view, this double safeguard is also presently codified in Section 388 . 2 , The Code . Having discussed the effects of an affirmative vote on the proposal presented in the instant case , the question remains whether or not the proposal as presently drawn is sufficiently specific to alert the voters as to the issues they are deciding . The proposal as drawn is clear. Voters are to determine , first , whether or not use of the city utility should be discontinued and, second, whether its assets should be sold. If the proposal receives an affirmative vote , the City Council is then free to follow one of two courses of action : ( 1 ) The Council may determine that disposal of the city electric utility should not be undertaken , or (2) the Council could proceed to dispose of the property pur- suant to Section 364 . 7 of The Code . Section 364 . 7 is exclusive in its terms concerning the sale or disposal of city property . Having addressed the issues of duality and specificity, the parties have also requested that the Court determine whether or not Section 388 . 2 of The Code creates a duty on the City Council of the City of Ames , Iowa, to submit their proposal to the voters at the next regular city election . Section 388 . 2 provides in pertinent part as follows : "Upon receipt of a valid petition as defined in Section 362 . 4 , requesting that a proposal be submitted to the voters , the council shall submit the proposal at the next regular city election . " Having cleared the hurdles of duality and specificity, it would appear that the proposal should be submitted to the voters at the next regular city election . -7- IT IS, THEREFORE, ORDERED AS FOLLOWS : 1 . That the proposal contained in the petition to' the City Council of the City of Imes , Iowa , is a valid proposal as contemplated under Section 388 . 2 of the Code of Iowa, and does not violate the principles of duality and specificity . 2 . That Section 388 . 2 of The Code requires that the Ames City Council submit the proposal to the voters at the next regular city election . Dated at Nevada, Iowa, this 7th day of October , 1981 . Judqe, 2nc Judicial District of Iowa . Copies to : Rex. B . Gilchrist Dale E. Sharn John R. Klaus ,