I am unable to concur in the majority opinion in this case, and I am unwilling that the rules announced and the conclusion reached by the majority become a part of the case law of this state, at least, without my protest. I feel that the announcement of the majority is not only against the great weight of authority in this as well as other states, but is against the public policy of this state as declared by the constitution and the prior decisions of this court. I am so thoroughly convinced of this that I am willing to hazard the prediction that the judgment of the majority which gives momentary currency to what I deem erroneous pronouncements and conclusions will some day be reversed. I am impelled to the belief that constitutional provisions and past pronouncements of this court cannot be ignored if the law in its administration is to win obedience and respect of the bench and bar as well as of the public generally.
In the following discussion I desire to give my reasons and make my position plain for the foregoing statement.
Section 30 of article III of the State Constitution provides that the General Assembly shall not pass local or special laws in certain enumerated cases, among which is "for the incorporation of cities and towns" and "in all cases above enumerated, and inall other cases where a general law can be made applicable, alllaws shall be general, and of uniform operation throughout the State."
Section 6, article I, provides that "All laws of a general nature shall have a uniform operation; the General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens."
We have held that the legislature has plenary power, subject only to constitutional limitations or prohibitions; that its power is not a delegated one, but it may exercise all power not forbidden by the constitution, or delegated by the people to the general government, or prohibited by the constitution of the United States; and that municipalities owe their origin to, and derive their power and rights from, the legislature. Clinton v. Cedar Rapids M.R.R. Co., 24 Iowa 455; McSurely v. McGrew,140 Iowa 163, 118 N.W. 415, 132 Am. St. Rep. 248.
It may also be conceded that it is the established law that if *Page 471 the thing done or which failed to be done which constitutes defects in municipal proceedings is something the necessity for which the legislature might have dispensed with by prior enactment, then it is not beyond the power of the legislature to dispense with it by subsequent enactment, within constitutionallimitations. So, if the defect or irregularity consists of doing some act in a mode or manner which the legislature might have made immaterial by prior law, it is equally competent to have made the same immaterial by a subsequent law, within the same constitutional limitations. Appellant does not controvert this proposition, but contends that a legislative act must be of uniform operation; that is, that it must have more than a local or special application, under the constitutional limitations.
It cannot be reasonably doubted that the so-called legalizing act in question applies only to the town of Grand Junction, and that it is an attempt to except or release the town of Grand Junction from the operation of a mandatory statute which remains in full force as to all other municipalities in the state; and it most certainly must be conceded that the legislature could not have done this at the time it enacted the sections of the statute herein referred to requiring competitive bidding on contracts of the kind here involved. There can be no argument on the proposition that the act in question grants to Grand Junction alone freedom from the necessity of following the provisions of sections 6134-d1 to 6134-d7, inclusive, and in granting to Fairbanks, Morse Company the right to contract with said town, ignoring the provisions of the statutes referred to, while denying such right to all others. It would have been rank preferment and patent violation of constitutional limitations had the legislature, at the time it enacted the sections of the statute requiring competitive bidding, excepted from the provisions of such sections the town of Grand Junction and Fairbanks, Morse Company and no one would attempt to contend that such exemptions and preferment written into the provisions of the mandatory statute could be sustained. That the legislature may by a curative or legalizing act do what they could have done in the first instance there can be no question. But the thought persists that what they could not have done in the first instance could not be done at a later time.
This court held at an early date in the case of Ex parte Samuel Pritz, 9 Iowa 30, that a legislative act extending to one *Page 472 town powers not given others of the same class is a prohibited special and local law. This case involved an amendment to the charter of the city of Davenport. In the Davenport case in considering section 30, art. III, of the constitution, and determining the intention when such article was adopted, the court used the following language:
"The ready and obvious answer is, to prevent special or local legislation; to require that the legislature should pass general laws upon all the subjects named and in all other cases, where such general law could be made applicable. There can be no question but that it was designed to confine the legislature to general legislation, and leave the people in their municipal capacity to organize and carry on their government under such general laws. * * * To say that the legislature may not pass a law to incorporate a city, but may to amend an act of incorporation in existence before the adoption of the constitution, or charters formed under the general law, would make this provision of the constitution practically amount to nothing. * * * It certainly will not be pretended that the power is given to amend that which they are prohibited from passing. To say that the legislature may not pass certain laws, and yet claim that they are not prohibited from amending the laws they cannot pass, would be to use an argument, the statement of which is its own refutation. * * * And finally, we suggest the query, whether, if this species of legislation may be tolerated, then may not the legislature grant to the citizens of one city or town, privileges and immunities, which, upon the same terms, do not belong to all the citizens of other cities or towns. If so, then is not such legislation prohibited by section 6, Art. I of the constitution."
The above-cited case simply lays down the rule that the legislature cannot do in a later instance what it had no power to do in the first instance. The act here involved is in effect an amendment to the original statute, but applying to no municipality in the state, except Grand Junction.
Another early case, that of Ind. School District v. City of Burlington, 60 Iowa 500, 15 N.W. 295, 297, considers a special act of the legislature attempting to legalize the imposition of certain taxes for the construction of a sewer, and Judge Rothrock, in disposing of the question as to the legality of the curative act, used the following language: *Page 473
"It is insisted that this act of the legislature is repugnant to that part of section 30, art. 3, of the constitution of this state, which provides that the general assembly shall not pass local or special laws where a general law can be made applicable. We think the position is well taken. Suppose that the act of 1878 had provided that the exception therein contained should not apply to the city of Burlington. There can be no question that the act would have been unconstitutional, because not general and uniform in its operation. Now this legalizing act is an attempt to do indirectly what cannot be done directly. The act of 1878 conferred no power upon cities that had commenced a general system of sewerage, by the levy and collection of taxes, to change the mode of assessment and levy. Burlington belonged to that class; but, notwithstanding the want of power, it passed an ordinance and attempted to proceed under the law of 1878. The legislature had no more constitutional power to legalize the ordinance than it would to specifically authorize it in the first instance, and at the same time deny the same right or power to other cities similarly situated. The objection to the legalizing act is not going to the mere form of executing a power conferred, such as the want of sufficient notice required to be given for the incorporation of a village, or town, or school-district, or the like; or a mere informality in the assessment or levy of a tax. The act purports to legalize an act of the city, which it had no lawful power to do; not in mere matter of form, but an act which must necessarily affect the rights of property owners in the city in a manner which, without the curative act, was wholly unauthorized."
The legalizing act was held invalid. So in the instant case the special act of the legislature purports to legalize an act of Grand Junction which Grand Junction had no lawful power to perform; that is, enter into a contract for the installation and construction of a municipal light and power plant without competitive bidding.
We find a like holding in the case of Stange v. Dubuque,62 Iowa 303, 17 N.W. 518. In this case the legislature attempted to legalize an ordinance of the city granting to a street railway company authority to occupy its streets. In disposing of the question as to the constitutionality of the legalizing act, Chief Justice Day said: *Page 474
"The defendant concedes that no express power is given to the city of Dubuque by its charter to authorize the occupancy of its streets by railroads operated by steam. The appellant contends that the `power of the legislature to ratify a contract entered into by a municipal corporation for a public purpose, which is ultra vires, results from its power to have originally authorized the very contract to be made.' This proposition we concede to be correct. Could the legislature, then, have passed an act authorizing the city of Dubuque to pass the ordinance in question? Article 3, section 30, of the constitution provides: `The general assembly shall not pass local or special laws in the following cases. * * * All laws shall be general and of uniform operation throughout the state.' It has been held that this section of the constitution prohibits the passage of a special law for the amendment of the charter of a city. [Cited cases.] As the legislature could not, by special act, have authorized the city of Dubuque to pass the ordinance in question, it follows that it cannot, after the passage of the ordinance, legalize it by a special act. The legislature cannot do indirectly what it isinhibited from doing directly."
The plain definite announcement of the three above-cited cases was reaffirmed and approved in an opinion of this court by Judge Weaver in the case of Cedar Rapids Water Co. v. Cedar Rapids,118 Iowa 234, 242, 91 N.W. 1081, 1084. The question there involved was whether or not the legislature could legalize the granting of a franchise or extend its life beyond the twenty-five years provided by the statute. And in disposing of the question the court used the following language: "Does the legalizing act of March, 1876, serve to prolong the life of plaintiff's franchise beyond the term of twenty-five years? In our judgment, this question must be answered in the negative. If the legislature, in enacting section 473 of the Code of 1873, had added thereto a proviso as follows, `Provided, that the limitations herein made upon the powers of cities and towns shall not apply to the city of Cedar Rapids,' we think no lawyer would contend that under our constitution such legislation would be of any validity. Const. Iowa, art. I, section 6; Id. art. III, section 30. But the effect of the legalizing act under consideration, in so far as it is applicable to the grant of franchise beyond the limit of twenty-five years, is no more or less than an attempt to except or release *Page 475 the city of Cedar Rapids from the operation of a general statute which remains in full force against all other municipalities of the state, and thus accomplish by the device of a legalizing act that which the legislature could not do by direct enactment. This, we have already held, cannot be done. [Citing cases.] It will not do to say, as urged by counsel, that, if the legislature has not the power to grant a franchise by a special act, it cannot grant such power to a city, and that the legislature may by special act `grant to a particular corporation a particular franchise for a particular city without being subject to any constitutional inhibition.' To accept that proposition is to open the door to the very evil which the constitutional provisions above cited were intended to avoid. The constitution seems to have been framed with special reference to the preservation of merely local interests from legislative interference, except through the medium of general laws having a uniform operation throughout the state. * * * The power of the legislature is, of course, practically unlimited, even in local matters, in the absence of constitutional restriction; and the prohibition of local or special legislation in no manner prevents that body from clothing cities and towns, through general statutes, with authority to do those things which are forbidden to itself. In other words, the constitution does not operate to forbid all local regulations and ordinances suitable to the peculiar circumstances of particular towns and cities, but it does forbid the exercise of this function by direct, special act of the legislature. Such we think the plain meaning of the constitutional provisions in question, and such, also, we think has been their universal interpretation by the courts."
The above-cited cases have never been distinguished or overruled. The case of McCain v. Des Moines, 128 Iowa 331, 333,103 N.W. 979, 980, attempts to distinguish the Cedar Rapids case; that is, it is said in the opinion in the McCain case that the legalizing act in the Cedar Rapids case "was held invalid because it did not have general application. In that case a general law could have been made applicable, and therefore the act under consideration there was held invalid." The McCain case involved a tax question only.
In the last case of Johnson County Bank v. Creston, 212 Iowa 929,932, 231 N.W. 705, 707, 237 N.W. 507, 84 A.L.R. 926, we find this language: "The contracts in controversy were *Page 476 entered into without submission to competitive bidding. The statute is peremptory that `all contracts for the construction or repair of street improvements and for sewers shall be let in the name of the city to the lowest bidder by sealed proposals upon giving' prescribed notice. The statute is a prohibition upon letting such contracts in any other mode. Des Moines v. Gilchrist, 67 Iowa 210, 25 N.W. 136; District Township v. Dubuque, 7 Iowa 262, 276; Coggeshall v. Des Moines, 78 Iowa 235,41 N.W. 617, 42 N.W. 650; Ebert v. Short, 199 Iowa 147, 152,201 N.W. 793. * * * Municipal corporations are the creatures of the legislature. They have such powers to contract, and only such powers, as the legislature grants to them. When the legislature withholds power to contract, or permits the exercise of the power in a given case only in accordance with imposed restrictions, the corporation may no more bind itself by implied contract than by the forbidden express contract. All persons dealing with a municipal corporation are charged with notice of the limitations upon its power. Those limitations may not be exceeded, defeated, evaded, or nullified under guise of implying a contract. A municipal contract let without competitive bidding, when the statute requires competitive bidding, is void, and no recovery may be had either upon the purported express contract or upon an implied contract to pay the reasonable value of the services or material furnished thereunder." (Citing many cases from this and other jurisdictions.)
If the contract with Grand Junction was void, as this court had held in the prior case, then the legislature is without constitutional power to legalize such void contract and in practical effect create an entirely new contract. There are many cases in other jurisdictions sustaining the rule laid down in the Cedar Rapids Water Works case and the three preceding cases in this state. For instance, Illinois, in McDaniel v. Correll,19 Ill. 226, 68 Am. Dec. 587, made this declaration:
"If it was competent for the legislature to make a void proceeding valid, then it has been done in this case. Upon this question we cannot for a moment doubt or hesitate. They can no more impart a binding efficacy to a void proceeding than they can take one man's property from him and give it to another. Indeed, to do the one is to accomplish the other." Also, see Columbus, C. I.C.R. Co. v. Board of Com'rs, 65 Ind. 427; *Page 477 Plumer v. Board of Sup'rs, 46 Wis. 163, 50 N.W. 416; Seibert v. Linton, 5 W. Va. 57; Leonard v. Maintenance District,187 Ark. 599, 61 S.W.2d 70; State v. City of Des Moines, 96 Iowa 521,65 N.W. 818, 31 L.R.A. 186, 59 Am. St. Rep. 381.
In Hunter v. Conner, 152 Tenn. 258, 277 S.W. 71, 72, the court said:
"A local act, which suspends general law for benefit of particular county, is void, and cannot operate to destroy the uniformity of the general law."
In Shores v. Banks County, 162 Ga. 185, 132 S.E. 753, 754, it was said:
"The act of 1924 is a special law; it applies to a restricted territory. It undertakes to authorize the county commissioners of two counties to open and lay out a public highway through a municipality without complying with the general law above stated. It is a special law enacted in a case for which `provision has been made for an existing general law.' The act is void. Since the special law under which the county authorities are endeavoring to proceed is unconstitutional, the court erred in refusing an injunction."
In the Indiana Constitution (article 4, sections 22, 23) we find provisions very similar to our own as contained in section 30 of article III. And in passing on a curative act the court of Indiana used the following language:
"In cases where it would have been originally competent for the general assembly to have authorized particular proceedings upon the part of a board or other official, the same source of power may ordinarily validate the proceedings; but unless the general assembly had the power to have authorized the proceedings originally by an act that, in substance, would have been of the same character as the curative act, then the curative act would be invalid." And the court further held that: "It cannot, however, be contended with any show of reason that it would have been competent to have limited said act so as to exclude from its operation proceedings to improve highways in Owen county, thereby legislating for Owen County in such particular." And the court held that the curative act could not validate void proceedings. Board of Com'rs of Owen county v. Spangler, *Page 478 159 Ind. 575, 65 N.E. 743, 746; Walsh v. State, 142 Ind. 357,41 N.E. 65, 33 L.R.A. 392; Schneck v. City of Jeffersonville,152 Ind. 204, 52 N.E. 212.
In Berry v. Hayes, 160 Tenn. 577, 28 S.W.2d 50, a special act of the legislature provided that the commissioners of a certain county should not have the right or power to impose taxation or expenses upon the county without the consent of the county; and the court in disposing of the constitutionality of the act used the following language:
"It is clear that this act is within the prohibition of section 8, art. 11, in that it suspends a general law and grants immunities and exemptions to Williamson county which no other county may enjoy. It is arbitrary class legislation for which no possible justification can be conceived. There is no reasonable ground for granting an immunity to Williamson county which does not apply to every other county alike."
In the South Carolina case of Lancaster v. Brookland,160 S.C. 150, 158 S.E. 233, 235, the court had under consideration a legalizing act ratifying and confirming an election for the extension of the limits for the town. The South Carolina Constitution contains provisions very similar to our own as to the enactment of general and special laws and as to uniformity in the application of laws. In that case an election was held without complying with a requirement as to the filing of a petition signed by a certain number of freeholders within the territory to be annexed to the town. And in passing upon the question as to the validity of the legalizing enactment that court held:
"Could the General Assembly by special Act have authorized the town of Brookland to hold this election without complying with the precedent requirement of the presentation of a petition signed by a majority of the freeholders of the territory proposed to be annexed? * * * This general law, which, it is declared, shall be uniform and is intended to apply to every city and town in the state, in effect says to Lexington and Batesburg and Saluda and others, `You can only extend the corporate limits of your town by complying with the provisions of Section 4385 of the Code; you must have a petition signed by the majority of the freeholders of the territory you propose to annex before you may order an election.' But it is argued that the Legislature may *Page 479 say to Brookland, `You are relieved from the necessity of complying with the requirements of the Statute; you need not have a petition signed by the majority of the freeholders.' The position is untenable. Such an act, if passed before the election, would be the rankest sort of special legislation. The fact that it was passed after the election was held, and that it seeks to cure admitted irregularities growing out of violations of the statute, can make no difference. `The General Assembly can validate any act which it might originally have passed.' * * * but it is plain that it might not originally have passed an act of the nature of that now under review, without infringing the provisions of the Constitution against the enactment of special laws. `The pivotal point in a healing or validating statute is that it must be confined to acts which the Legislature could previously have authorized.'" Citing Dove v. Kirkland,92 S.C. 313, 75 S.E. 503; Floyd v. Calvert, 114 S.C. 116, 103 S.E. 82; Tisdale v. Scarborough, 99 S.C. 377, 83 S.E. 594.
In Chicago, R.I. P.R. Co. v. Rosenbaum, 212 Iowa 227,231 N.W. 646; Peverill v. Board of Sup'rs, 201 Iowa 1050,205 N.W. 543, and Chicago, R.I. P.R. Co. v. Streepy, 211 Iowa 1334,236 N.W. 24, cited and relied upon by the appellees, it appears that general acts of the legislature only were involved. In many of the other cases cited and relied upon by the appellees, mere informalities in executing and conferring power were involved, such as defective notice for the incorporation of a town, or school district, or the like, or an informality in the assessment or levy of a tax. Ind. School District v. Burlington, 60 Iowa 500,15 N.W. 295. But none of the cases relied upon by the appellees give to them any substantial support. Most of them arose under a failure to strictly comply with permissive, directory, or discretionary statutes. In the case at bar we have a plain, definite, mandatory statutory provision requiring competitive bidding in the letting of a contract of the kind here involved. And we have in the curative act an attempt to release the town of Grand Junction from the provisions of this mandatory statute, while leaving it in full force and effect as to all other cities and towns in the state.
The instant case is not the only one in which there has been such a violation of the provisions of this mandatory statute. This court had the same statute under consideration in the very *Page 480 recent case of Iowa-Nebraska Light Power Co. v. Villisca et al., 220 Iowa 238, 261 N.W. 423. And in that case we held a contract, like the one here involved, entered into between the town of Villisca and Fairbanks, Morse Co., void for failure to comply with the mandatory statute referred to. So, too, a like question was presented to us in the more recent case of Northwestern Light Power Co. v. Grundy Center et al., 220 Iowa 108,261 N.W. 604, in which case a contract made between Fairbanks, Morse Company, and the town, like the one in the instant case, was held void by reason of a failure to comply with the mandatory requirements of the statute on competitive bidding. In view of the record in the instant case, we may anticipate further legislative curative acts releasing the towns of Villisca and Grundy Center from the requirement that this class of contracts must be let on competitive bidding, while still leaving the general statute in force as to all other cities. I do not think that any particular town or towns or any particular contractor should be relieved by the legislature from compliance with the statutes referred to. Such legislative acts not only contravene constitutional limitations and provisions, but should be held to be against the public policy of this state, as declared by the legislature in the statute requiring competitive bidding for municipal contracts of the class here involved. As has been declared, the object and purpose of the statute requiring competitive bidding is "to enable municipal corporations to secure the best bargain for the least money", Iowa-Nebraska Light Power Co. v. Villisca, supra, and to prevent fraud and the making of contracts for excessive amounts, thereby imposing extra burdens on the taxpayers. But it is said the taxpayers cannot be interested, and in fact it is claimed a taxpayer has no such interest as will permit him to bring an action questioning the legality of the contract here involved, for the reason that under the contract the consideration must be paid exclusively from the earnings of the plant. But in this connection it must be remembered that when paid for this utility plant will belong to the town of Grand Junction, and after that period the earnings will go into the funds of the town and thereby relieve the property owners therein from some of their tax burdens.
The appellant attacks the validity of the so-called curative or legalizing act on the ground that it is an interference with the authority of the judicial branch of the state government; this *Page 481 court having held the contract void prior to the enactment of the act. This contention has merit and is sustained by numerous decisions of our sister states. However, I will not extend this dissent to discuss this proposition.
I would hold that the legislature cannot under the provisions of the constitution accomplish by a curative or legalizing act what it could not have done at the time of the passage of the original statutes involved. This is what it attempted to do in the act under consideration, and no questions of expediency can warrant the passage or approval of an act of the kind.
The legalizing act in this case is clearly contrary to the provisions of our constitution. The constitution should not be regarded as a public enemy and knocked down every time it is met. Neither should it be restricted and ignored by repeated acts of attrition. If a statute is clearly contrary to constitutional provisions, it is the duty of the court to declare it so. No other tribunal can be appealed to. It matters not how laudable the purpose of the statute may be, if it violates the constitution, the duty of the court is clear. The statute under consideration in this case has no laudable purpose. On the contrary, it was enacted to enable the Fairbanks, Morse Company and the town of Grand Junction to evade the public policy and the laws of this state. There is no effort to relieve towns other than Grand Junction from the necessity of competitive bidding in awarding public contracts. There is no change in the policy of the state in any manner providing that it is a desirable means of preventing fraud. It amounts simply to a declaration by the legislature that the usual consequence of violating a law shall be dispensed with in the case of this one town and this one contractor, the Fairbanks, Morse Company.
As was said in McDaniel v. Correll, 19 Ill. 226, 68 Am. Dec. 587, "If it was competent for the legislature to make a void proceeding valid, then it has been done in this case. Upon this question we cannot for a moment doubt or hesitate. They can no more impart a binding efficacy to a void proceeding, than they can take one man's property from him and give it to another. Indeed, to do the one is to accomplish the other."
If the curative act in this case be held valid, as it is by the majority opinion, then there is no reason why an act legalizing any kind of a contract could not be held valid after it had been *Page 482 declared void by the supreme court. When the contract here involved was declared null and void by the prior opinion of this court, there existed no contract. It was completely dead. It had no vitality or force. Now by the majority opinion life is restored to it, and I would hold that this could not be accomplished even by the united efforts or acts of all three branches of the state government.
I would reverse the action of the trial court in holding the curative act under consideration valid and constitutional.
MITCHELL, J., joins in this dissent.
KINTZINGER, C.J., also joins in this dissent.