Chapter 202, Laws of the Forty-ninth General Assembly, according to its title, is "AN ACT providing for the procedure for assessing real and personal property * * * in cities having more than one hundred twenty-five thousand (125,000) population * * *." Some of the provisions of the law are explained in Tusant v. Des Moines, 231 Iowa 116, 300 N.W. 690. Section 1 provides:
"Within thirty (30) days from the taking effect of this Act, in cities having more than one hundred twenty-five thousand (125,000) population, the city council, the school board and the county board of supervisors each shall appoint at a regular meeting by a majority vote of the members present, one qualified *Page 711 person to serve as a member of an examining board to give an examination for the positions of city assessor and deputy assessors. * * *"
Subsequent sections provide for terms of members of the examining board; examinations to be given by the board to applicants for assessor; selection of an assessor by members of the board of supervisors, school board, and city council from among applicants who pass the examination; term of office and manner of removal of the assessor; selection of deputy assessors; compensation of the assessor and his deputies; appointment, terms, compensation, and duties of members of a local board of review of assessments; manner of protesting before the board of review and taking appeals to the district court therefrom.
Plaintiffs are citizens, residents, and taxpayers of Des Moines. They contend the law violates two sections of the Iowa Constitution: section 6, Article I, providing that "laws of a general nature shall have a uniform operation," and section 30, Article III, prohibiting local or special laws for the assessment and collection of taxes (and certain other purposes) and requiring laws to be general and of uniform operation throughout the state.
Polk County, in which Des Moines is situated, the Independent School District of Des Moines, and the City of Des Moines intervened in the action. They joined defendant county auditor in a motion to dismiss plaintiffs' petition, alleging, in substance, that it appears from the petition the law is not invalid in any of the respects claimed. The trial court sustained the motion. Plaintiffs refused to plead further and elected to stand upon their petition. A decree was thereupon entered dismissing the petition, from which plaintiffs have appealed.
[1] I. We have said repeatedly that we will not declare legislation unconstitutional unless the violation is clear, palpable, and free from reasonable doubt.
[2] II. Does the act in question satisfy the constitutional requirement of a general law having a uniform operation, or is it local or special? It is clearly a law for the assessment and collection of taxes. To be constitutional a law need not operate uniformly upon all people of the state, nor, when pertaining to *Page 712 cities, upon all cities of the state. Even though the legislation at a given time operates as to only one city, if it is so drawn as to apply upon the same condition, when and where it arises, to other cities which subsequently fall within the designated class, the constitutional requirement is met, provided the classification is reasonable. State ex rel. West v. City of Des Moines, 96 Iowa 521, 526, 65 N.W. 818, 31 L.R.A. 186, 59 Am. St. Rep. 381; Cook v. Hannah, 230 Iowa 249, 253, 297 N.W. 262; 59 C.J. 760, section 353.
It is a matter of common knowledge of which we take judicial notice that Des Moines is the only city in the state with a population of more than 125,000. Of course, this was known to the legislature. It is apparent, therefore, that this measure was intended to and does have immediate application only to Des Moines. It does not follow, however, that it is a local or special law, unless, according to its terms it can never operate upon any other city. The vital question, therefore, is whether the act is applicable to cities which may subsequently attain a population of 125,000.
Plaintiffs emphasize the fact that the law, by the terms of both the title and section 1, applies to "cities having more than 125,000 population" and not to "cities now or hereafter having more than 125,000 population." It may be conceded that the language last quoted would have been preferable. However, we are not prepared to hold, as plaintiffs contend, that the wording of the law is the equivalent of "cities now having more than 125,000 population." If we are to adhere to what we have said in prior decisions, the language used is not fatal to the validity of the law.
Tuttle v. Polk Hubbell, 92 Iowa 433, 443, 60 N.W. 733, involved legislation applicable to "all cities of the first class in this state, containing according to any legally authorized census or enumeration a population of over thirty thousand." Acts of the Twenty-first General Assembly, chapter 168, section 1. At that time Des Moines was the only city in that class. It was held that the act was general and not special because it was not restricted to cities having the required population at the date it became a law, but applied to all cities which should thereafter have more than thirty thousand inhabitants. Owen v. City of *Page 713 Sioux City, 91 Iowa 190, 59 N.W. 3; Haskel v. City of Burlington,30 Iowa 232, 236; Iowa Railroad Land Co. v. Soper, 39 Iowa 112,115, were cited.
State ex rel. West v. City of Des Moines, 96 Iowa 521, 526,527, 65 N.W. 818, 820, 31 L.R.A. 186, 59 Am. St. Rep. 381, involved an act which extended "the boundaries of all cities in this state, which had, by the state census of 1885, a population of thirty thousand or more." Acts of the Twenty-third General Assembly, chapter 1, section 1. Since Des Moines was the only city having such population, it is apparent the act by its terms could never apply to any other city. This court, therefore, properly held the law violated the constitutional provisions which these plaintiffs invoke. However, the following language of the opinion distinguishes that case from the present:
"Had the act in question been made applicable to all cities of over thirty thousand inhabitants, without a qualification that, under known facts, would exclude its operation as to any other such city, the case would be different."
In State ex rel. Pritchard v. Grefe, 139 Iowa 18, 30,117 N.W. 13, a statute was considered which provided for the consolidation of school districts "in all cities of the first class containing a population of fifty thousand or over, according to any census taken." Acts of the Thirty-second General Assembly, chapter 155, section 1. Des Moines was the only city with the required population when the law took effect. The statute was held to be general and of uniform operation.
In State ex rel. Welsh v. Darling, 216 Iowa 553, 561, 562,246 N.W. 390, 394, 88 A.L.R. 218, we upheld a statute "creating," according to its title, "a park board in cities having a population of one hundred twenty-five thousand (125,000) or more." Acts of the Forty-fourth General Assembly, chapter 149. The court said, speaking through Stevens, J.:
"It is suggested that the title to the enactment does not carry out the idea that it was designed to apply to cities subsequently acquiring the required population. We think the suggestion not well taken. The language of the title makes it applicable to all cities having a population of 125,000 or more, and *Page 714 provides the powers and duties thereof. The title is ample. Of course, direct provision might have been made for cities subsequently coming within the classification, but it would hardly do to place so narrow a construction thereon as to deny its practical application thereto."
We find the following in 12 Am. Jur. 169, 170, section 489:
"Although the authorities on the point are in conflict, it appears to be the better view that a statute which classifies cities or other localities to be governed by its provisions by a given or fixed population `according to the last United States census' will be held to apply to all other cities or localities which under any Federal census may in the future pass into such class, and is valid."
See, also, 59 C.J. 760, section 352, n29.
The law in question here is in general terms. It refers to "cities having more than one hundred twenty-five thousand (125,000) population," not to cities now having the requisite population. Chapter 203, Acts Forty-ninth General Assembly, which amends chapter 202, refers to the present assessors and their deputies who will be displaced by the assessors and deputies chosen pursuant to the act. Had the legislature intended the law to apply only to Des Moines, it could easily have so stated. Of course, it is possible for local or special legislation to be enacted under the guise or pretense of a general law. Where this is obvious, it is our duty so to hold. That situation existed in State ex rel. West v. City of Des Moines, supra, 96 Iowa 521,65 N.W. 818, 31 L.R.A. 186, 59 Am. St. Rep. 381. However, this court should be slow to attribute to the legislature a purpose to deceive. It is our duty to construe the act, if possible, so as to avoid holding it unconstitutional. We think, therefore, it is entirely possible and well within the authorities to construe the act as applicable to cities now or hereafter having more than 125,000 population.
But, plaintiffs argue, the law by its terms becomes operative in Des Moines within thirty days from the date it takes effect by publication but specifies no machinery by which it shall become operative in cities other than Des Moines which subsequently *Page 715 attain the required population. If we are to follow our decision in State ex rel. Welsh v. Darling, supra, 216 Iowa 553, 560, 561,246 N.W. 390, 88 A.L.R. 218, the contention must be rejected. It is true section 1 of the park-board law under consideration in the Darling case [chapter 149, Acts of the Forty-fourth General Assembly] provides that the act applies "only to cities now or hereafter having a population of one hundred twenty-five thousand (125,000) or more." However, the only provision of the park-board statute that undertakes to establish such a board is section 2, which reads:
"Within sixty (60) days after the taking effect of this act, in all cities now having a population of one hundred twenty-five thousand (125,000) or more according to the last state or federal census, there shall be established in accordance with the terms of this act, a permanent park board for such city."
Subsequent sections of the park-board law provide:
"3. Such park board shall consist of ten (10) members. * * *
"4. It shall be the duty of such board to plan the city's parks * * * In the expenditure of funds, said board shall be governed by the ordinances of the city applicable thereto.
"6. Said board shall make an annual report to the city council * * *."
It will be noticed that this law establishes a park board only in cities "now having a population of one hundred twenty-five thousand (125,000) or more." Des Moines, of course, was the only city answering that description. References in subsequent sections of the law to "such park board," "such board," and "said board" are obviously to the board established by section 2 of the act. The law provides no machinery by which the act can operate in cities subsequently attaining such population. Nevertheless, we upheld the act against the same attacks now made against the assessor law by plaintiffs, on the theory that the act by implication becomes operative in other cities of the designated class.
Principal basis for plaintiffs' contention that the law in question provides no machinery by which it may become operative *Page 716 in cities other than Des Moines is that sections 2, 6, and 15 fix the terms, respectively, of the first members of the examining board, assessor, and members of the board of review. Each section, however, provides that subsequent terms shall be for six years. The act, therefore, could readily become operative in cities attaining the specified population after the times fixed for expiration of the initial terms. It is true that in such cities the terms of members of the examining board and board of review would not, by the provisions of the law, be "staggered." But it must be presumed the legislature did not deem this necessary. This circumstance is insufficient to invalidate the law.
[3] III. Plaintiffs also contend the classification adopted by the legislature has no reasonable relation to the purposes of the act and unjustly deprives plaintiffs of rights and immunities accorded other citizens, in violation of section 6, Article I, and section 30, Article III of the State Constitution. It is also claimed there is a denial of the equal protection of the laws guaranteed by section 1 of the Fourteenth Amendment to the Federal Constitution.
It is fundamental that legislative classification must be reasonable and based on some substantial distinction. Classification must rest upon material differences between those included within the law and those excluded. Keefner v. Porter,228 Iowa 844, 848, 293 N.W. 501; Hubbell v. Higgins, 148 Iowa 36,40, 126 N.W. 914, Ann. Cas. 1912B, 822, and citations; 12 Am.Jur. 151, section 481; 16 C.J.S. 954, 955, section 489.
It is also well settled that classification is primarily a question for the legislature, which exercises a wide discretion in determining the class to which an enactment is to apply. Cook v. Hannah, supra, 230 Iowa 249, 253, 297 N.W. 262, and cases cited; 16 C.J.S. 471, 489, section 154. It has also been frequently recognized, as plaintiffs concede, that valid classifications are often based on population. 12 Am. Jur. 169, section 489; 16 C.J.S. 961, 963, section 494.
We hold the classification contained in this law is valid. We are not prepared to say that the problems of assessing property for taxation in Des Moines and any other cities which may attain a population of 125,000 are not such as to justify the application to them of this law. We took occasion, in Tusant *Page 717 v. Des Moines, supra, 231 Iowa 116, 128, 300 N.W. 690, to comment on one condition that the law was designed to remedy — much expensive litigation. It is doubtless true that some conditions are common both to the cities within and those without the scope of the act. But we cannot say the classification is capricious or arbitrary or that it bears no reasonable relationship to the purposes which the legislature sought to accomplish.
[4] Principal complaint is directed against section 23, prescribing the procedure to be followed by a taxpayer in protesting to the board of review. Such protest is required to be in writing, specifying one or more of the grounds enumerated. The requirements pertain merely to matters of procedure and do not affect the substantial rights of the taxpayers affected. Furthermore, even if section 23 were invalid it would not result in invalidity of the entire law. Davidson Bldg. Co. v. Mulock,212 Iowa 730, 756, 235 N.W. 45. See, also, Smith v. Thompson,219 Iowa 888, 894, 258 N.W. 190. The act contains "a saving clause."
[5] Plaintiffs also contend the law is discriminatory because section 16 provides that protests not disposed of by the board of review on August 1st shall be automatically overruled, and because the term of the assessor is six years, rather than two years, as elsewhere. It is sufficient to say that these provisions do not render the entire law invalid in the respect claimed.
The decree is — Affirmed.
BLISS, HALE, WENNERSTRUM, and MANTZ, JJ., concur.
SMITH and MULRONEY, JJ., dissent.
OLIVER, J., dissents from Division II.
MILLER, J., takes no part.