Burlington & Summit Apartments, Midland Mortgage Co. v. Manolato

7 N.W.2d 26, 233 Iowa 15

• Court: Supreme Court of Iowa
• Decided: December 15, 1942
• Docket: No. 46043.
• Status: Published

Opinions

Carpíelo, J.

The petition alleged that plaintiff rented to defendant by written lease Apartment B2 in the Burlington Apartments in Iowa City, from September 20, 1941, to June 20, 1942, at the monthly rent of $47.50. Judgment was asked for $332.50 as rent under the lease. A landlord’s attachment was also sought. In defendant’s answer, after admitting the execution of a lease, it was alleged in substance that the Burlington Apartments is a multiple dwelling built in 1926, “that the plaintiff and its assignors in title absolutely failed and refused to procure the issuance of a certificate by the Health Officer of Iowa City, Iowa, that such apartment building or any part thereof conformed to the requirements of Chapter 323 of the Code of Iowa as specifically required by Section 6431 of the 1939 Code of Iowa. That as a result of the said failure to comply with Section 6431 of the Code of Iowa, the plaintiff is not entitled to recover any rent * * * as specifically provided by Section 6432 of the Code of Iowa. ’ ’ It was also alleged that defendant did not know of such noncompliance when she executed the lease and would not have made it had she so known.

Plaintiff moved to strike the foregoing allegations because the title to the Housing Act does not properly express the subject of the act as required by section 29 of Article III, Const? tution of Iowa, and because Code section 6432 is an unreasonable exercise of the police power and violates the due-process provisions of the state and Federal Constitutions, (section 9 of Article I, Constitution of Iowa; section 1 of the Fourteenth Amendment to the1 Constitution of the United States). It was also asserted in support of the motion, in substance, that the answer did not allege that the apartments were not constructed to conform to the Housing Law nor that plaintiff was the owner when they were constructed or first occupied; that it is presumed the apartments weré annually inspected by the health officer as provided by Code section 6449; that when plaintiff acquired the property it had a right to assume the statute had been complied with.

The trial court sustained the motion to strike. From its ruling it appears it was of the opinion the title to the Housing Act does not comply with section 29 of Article III, Constitution of Iowa; also that Code section 6432 is an unreasonable and invalid exercise of the police power. Defendant has appealed from this ruling. In addition to what has been stated, defendant’s answer contained other allegations which were stricken in response to paragraphs 5 to 9 of plaintiff’s motion. No complaint is made upon this appeal of this part of the ruling.

The Housing Law, chapter 323, Code, 1939, was enacted in 1919 as chapter 123, Acts of the Thirty-eighth General Assembly. It is primarily applicable to cities of 15,000 or more. Code sections 6431 and 6432 (sections 93 and 94 of the act), which form the basis for the defense that was stricken, provide:

“6431 New or altered buildings — habitation. No part of a building hereafter constructed as or altered into a dwelling shall be occupied in whole or in part for human habitation until the issuance of a certificate by the health officer that such part of said dwelling conforms to the requirements of this chapter relative to dwellings hereafter erected. Such certificate shall be issued within three days after written application therefor if said dwelling at the date of such application shall be entitled thereto.

“6432 Bents uncollectible. If any building hereafter constructed as, or altered into, a dwelling be occupied in whole or in part for human habitation in violation of section 6431, during such unlawful occupation no rent shall be recoverable by the owner or lessee of such premises for said period, and no action or special proceeding shall be maintained therefor or for pos-session of said premises for nonpayment of said rent, and said premises shall be deemed unfit for human habitation and the health officer may cause them to be vacated accordingly. ’ ’

I. Legislation will not be held unconstitutional unless clearly, plainly, and palpably so. If the constitutionality of an act is merely doubtful or fairly debatable, the courts will not interfere. State ex rel. Welsh v. Darling, 216 Iowa 553, 556, 246 N. W. 390, 88 A. L. R. 218; State v. Fairmont Creamery Co., 153 Iowa 702, 706, 133 N. W. 895, 42 L. R. A., N. S., 821.

II, The first ground of the motion to strike is that the title to the Housing Act does not conform to section 29, Article III, of the Constitution of Iowa, which provides:

“Every act shall embrace but one subject, and matters prop-erly connected therewith; which subject shall be expressed in the title. * * *”

The material part of the title to the Housing Act reads:

“An act in relation to the housing of the people in cities of the first class * * * to promote the health, safety and welfare of the people by regulating the light and ventilation, sanitation, fire protection, maintenance, alteration and improvement of dwellings; to define the classes of dwellings affected by the act, to establish administrative requirements and to establish reme-dies and fix penalties for the violation thereof; * * ”

It will be noticed that the constitution provides that the subject embraced in the act be expressed in the title. It is not required that matters properly connected with such subject be so expressed. Iowa-Nebraska L. & P. Co. v. City, 220 Iowa 238, 240, 261 N. W. 423, and cases cited. It has been the uniform holding of this court that this constitutional provision is to be liberally construed to the end that one act may embrace all matters reasonably connected with the subject expressed in the title and not utterly incongruou~ thereto. The object was to prevent the union in one bill of matters having no fair relation, to prevent surprise in legislation. That only is prohibited which by no fair intendment can be considered as germane. The title need not be an index or epitome of the act or its details. The constitution is not violated if the provisions of the law relate to the subject indicated in the title and are parts of it or incidental to it or auxiliary thereto. State v. Talerico, 227 Iowa 1315, 1322, 290 N. W. 660, and eases cited.

We are not prepared to hold that the provision of Code section 6432 that no rent is recoverable for a dwelling occupied in violation of section 6431 is not germane to the general subject expressed in the title or is incongruous thereto. Appellee argues that there is nothing in the title of the act that would intimate or suggest such a provision as is contained in section 6432. It is true we have said this is a proper test of compliance with the constitution. Chicago, R. I. & P. R. Co. v. Streepy, 207 Iowa 851, 856, 224 N. W. 41. However, we are unable to agree with the argument. In addition to describing the broad subject of the act, the title refers to the establishment of administrative requirements and the fixing of penalties for violation thereof. As appellee argues, the provision of section 6432 which appellant invokes is in the nature of a penalty. It is true other penalties are fixed by sections 6433 to 6437. Appellee argues these are the penalties to which the title refers. Even if this were conceded, the title would not be invalid as to other penalties “'not specifically expressed therein but which might be properly inferred from the general subject of the title.” State v. Talerico, 227 Iowa 1315, 1323, 1324, 290 N. W. 660, 664. We think a person reading the title to the Housing Law would have no legitimate cause for surprise that this provision of section 6432 was included in the act. See McKinley v. Clarke County, 228 Iowa 1185, 1189, 293 N. W. 449.

Our conclusion is in no way inconsistent with Johnson v. Carter, 218 Iowa 587, 593, 255 N. W. 864, 93 A. L. R. 774, or Casey v. Valley Sav. Bk., 231 Iowa 19, 26, 300 N. W. 733, 737. In the Johnson case we held that the housing act did not impose any civil liability upon a landlord for damages sustained by a tenant because of failure to repair the premises, and commented that no mention of the relation of landlord and tenant and no expression of a purpose to change the common-law rule governing such liability are made in either the title or body of the law.

III. Is the provision of section 6432 that no rent is recoverable where a certificate of conformity has not been issued an unreasonable, arbitrary, and oppressive exercise of the police power, in violation of due process? Appellee argues that appellant does not plead that the building was not constructed according to requirements of the law, nor that a certificate of conformity would, upon application, be withheld; that it must be presumed the building was annually inspected as provided by section 6449; that to prohibit collection of rent for mere failure to procure the certificate is so harsh and oppressive as to render the provision invalid.

Appellee concedes that the police power is very broad and that the Housing Law, aside from the provision here under attack, is a proper exercise thereof. It has been frequently held that the due-process clauses which appellee invokes do not limit the exercise of the state’s police power unless the legislation is an arbitrary,, unreasonable, or improper use of such power. Peverill v. Board of Supervisors, 208 Iowa 94, 115, 116, 222 N. W. 535; Priest v. Whitney L. & Tr. Co., 219 Iowa 1281, 1315, 261 N. W. 374; Craven v. Bierring, 222 Iowa 613, 617, 269 N. W. 801; State v. Strayer, 230 Iowa 1027, 1037, 299 N. W. 912; 16 C. J. S., 565, 566, 567, section 196; 11 Am. Jur. 998, section 262.

We cannot declare this provision of section 6432 invalid as unreasonable or oppressive. Nor can we say that it has no fair tendency to accomplish the avowed objects of the Housing Law nor that it bears no reasonable relation to such objects. It seems to us that the provision tends to encourage compliance with the law and promote its legitimate purposes. Presumably a certificate can be readily obtained if an owner is entitled thereto. It must be remembered that the policy, wisdom, and expediency of laws are questions for the legislature. Gallarno v. Long, 214 Iowa 805, 817, 243 N. W. 719; Burlington, C. R. & N. Ry. Co. v. Dey, 82 Iowa 312, 344, 48 N. W. 98, 12 L. R. A. 436, 31 Am. St. Rep. 477; 16 C. J. S. 567, section 198; 11 Am. Jur. 1087, 1089, section 306.

Squarely in point is Second Nat. Bk. v. Loftus, 121 Conn. 454, 185 A. 423, where an almost identical statutory provision was upheld against a similar attack, even though it affirmatively appeared that the building for which .recovery of rent was sought was constructed in accordance with the law. Apparently, laws similar to our housing act, containing a provision like section 6432, have been passed in many states. No decision holding such a provision invalid has been called to our attention.

IV. Appellee seeks to sustain the court’s ruling on the theory that a certificate of compliance is not required for any part of a building wholly used and occupied for a multiple dwelling but only for those parts of a building used for dwelling purposes where the remainder of the building is used for some other purpose. In other words, the claim is that a certificate is necessary only for a building which is altered or constructed in part as a dwelling and in part for some other use. Basis for the contention is the wording of section 6431, above quoted, that, “No part of a building hereafter constructed as or altered into a dwelling shall be occupied in whole or in part” (until the issuance of a certificate).

It does not appear that this contention was made in the trial court. Nevertheless, we cannot adopt such a strained construction. It does not seem reasonable that the legislature intended section 6431 to have such a narrow meaning. The words “constructed” and “altered” can fairly be said to refer back to the word “building.” The wording of the second sentence of section 6431, as well as section 6432, does not support appellee’s contention. Had the legislature intended the statute to mean what appellee contends, it could readily have expressed such intent in unmistakable terms.

V. Appellee also contends that the allegation in appellant’s answer “that plaintiff and its assignors in title absolutely failed and refused to procure the issuance of a certificate” is not the equivalent of a charge that no certificate issued and is insufficient to entitle appellant to the benefit of section 6432. This contention also seems not to have been advanced in the lower court, except perhaps indirectly, although the grounds of appellee’s motion to strike were set forth in some detail. The trial court’s ruling seems to have proceeded on the theory that the answer alleged a violation of the statute and the controlling question was the validity thereof. We think we would not be justified in affirming the ruling merely because the answer did not allege in so many words that a certificate had never been issued. If the case is tried, the burden will be upon appellant to prove that a certificate had not been issued prior to the period for which rent would otherwise be recoverable.

Some other contentions have been advanced which need not be discussed. We think the lower court erred in striking the allegations of the answer above referred to and its ruling in sustaining paragraphs 1 to 4 of appellee’s motion is hereby— Reversed.

Stiger, Sager, Bliss, Oliver, and Hale, JJ., concur. Miller, J., Wennerstrum, C. J., and Mitchell, J., dissent from division III.