Children v. Shinn

• Decision Date: 23 January 1915
• Docket Number: No. 29636.,29636.
• Citation: 150 N.W. 864,168 Iowa 531
• Parties: CHILDREN v. SHINN.
• Court: Iowa Supreme Court

168 Iowa 531

150 N.W. 864

CHILDREN

v.SHINN.

No. 29636.

Supreme Court of Iowa.

Jan. 23, 1915.

Appeal from District Court, Pottawattamie County, at Avoca; O. D. Wheeler, Judge.

Action for libel. Directed verdict for the defendant, and plaintiff appeals. Reversed.Killpack & Northrop, of Council Bluffs, for appellant.

Turner & Cullison, of Avoca, and Genung & Genung, of Glenwood, for appellee.

PER CURIAM.

Plaintiff became a member of the board of supervisors of Pottawattamie county on January 1, 1911, and at the general election in the fall of the year 1912 he became a candidate to succeed himself. Prior to his incumbency, the board of supervisors had had a great deal of trouble over the establishment of drainage districts and the changing of water courses within the county, and these difficulties continued during his incumbency. For some reason defendant became interested in the defeat of each and all of the sitting members of the board, who were candidates for re-election, and he caused to be published in the Oakland Acorn, of Oakland, Iowa, the Journal Herald of Avoca, Iowa, and the Carson Critic, of Carson, Iowa, all newspapers published in the respective towns in Pottawattamie county, an article from which we extract the following:

“As a committee of Twenty-Five Republicans View the Management of the Affairs of This County:

The following is taken from the records of the district court of Avoca, in the case of Shinn, Denton and Fenn v. The Board of Supervisors, relating to the establishment of the Nishnabotna drainage ditch No. 10, the supervisors secured themselves to be subpœnaed as witnesses.

The trial was begun on the 20th day of April and concluded on the 29th day, 1912. The supervisors who were defendants claimed fees as follows: G. W. Spencer, 8 days, 23 miles, $12.30; G. H. Darrington, 4 days, 60 miles, $10.00; W. C. Children, 5 days, 41 miles, $10.35. The court decided the case against the plaintiffs and plaintiffs filed a motion to retax this cost on the grounds that the statute expressly provides that parties to an action are not entitled to witness fees and these members of the board of supervisors being parties under the statute, were not entitled to fees, but the court overruled the motion and taxed the above fees to the plaintiffs. The plaintiffs paid the same to the clerk of the court at Avoca.

In the case of Pullen, Steinberg & Cassell v. The Board of Supervisors, tried in the Council Bluffs district court, the same motion was filed in that case, where Spencer, Darrington and Children had claimed witness fees and the court ruled that they were not entitled to fees, being parties to the suit. So we have two rulings upon the question made by the same judge and in direct conflict. The ruling of the Council Bluffs case was made about six weeks after the one made in Avoca.

Supervisor Darrington filed a bill against the county for committee work which was paid from the general fund of the county as follows: Apr. 21, $4.50; Apr. 22, $4.20; Apr. 26, $5.05; Apr. 28, $6.00. Supervisor Spencer was paid $29.30 from the general fund for committee work on Nishnabotna Extension Ditch No. 10, for the days of April 20, 21, 22, 24, 25, 26, 28, and 29. Supervisor Children was paid $10 mileage and $18 for committee work on the Nishnabotna Extension Ditch, No. 10, from the general fund for the dates of Apr. 20, 21, 25, 26, 28, and 29.

It will be observed that Spencer, Darrington and Children claimed fees for attending the district court at Avoca, also mileage for the same days that they claim compensation for committee work and mileage. After claiming the witness fees and judgment was entered against the plaintiffs for the same, they directed the clerk, at Avoca, to turn these fees into the general county fund.

Mr. Children and Mr. Darrington are candidates for re-election and the foregoing statement of facts is submitted to the voters of this county without comment.

A. The board of supervisors have wholly disregarded the law with respect to keeping the proper records of the cost of the construction of bridges and by disregarding the law has made it almost impossible to ascertain what the bridges of the county have cost the taxpayers. If they had kept the bridge record as required by the statute it would be no trouble whatever for the public to ascertain and know what any particular bridge or concrete culvert had cost the taxpayers. The following is the statute that they wholly neglected to observe. Section 442, par. 3, of the Code of 1897, reads as follows:

‘The board is authorized and required to keep the following books: * * * (Third paragraph.) A book to be known as the bridge book, where a record of bridges shall be kept in a numerical order in each Congressional township, commencing in section one, numbering each bridge; give location in fractional parts of section; name the kind of material used for substruction and superstruction; give length and cost of bridge, and when repaired, to keep a record of repairs and charge it to the bridge; and warrants drawn in payment for erection or repairs of bridges shall indicate the number of the bridge for which it is issued in payment.’

No entries have been made in the bridge book, although there is one in the auditor's office, since 1903. We give below a sample of claims filed and allowed:

Concrete bridge, S. E. corner of Carson, built by Lana, dated Sep. 30, 1909, allowed Nov. 10, same year, $960.00.

Sep. 30, 1909, Lana files bill against county, between sections 27 and 34, Center, 48 In. concrete tile, 44 ft., at $5.50, $242.00.

Oct. 28, 1910, W. M. Lana, 36 ft. 60 in. reinforced, Con. culvert, $5.50, total $198.00.

Oct. 28, 1910, Lana between 19 and 30, Knox, 52 ft. 48 culvert, $5.50, $286, allowed Nov. 1910. Bill not signed or sworn to.

Nov. 8, 1910, W. M. Lana, between 8 and 17, Knox twp., 30 ft. cement bridge, $1,198.00.

Aug. 1, 1910, W. M. Lana, 40 ft. 48 corrugate at $4.00, $160.

Sept. 6, 1910, same at $3.20 near George Dye's.

During 1909-10 and 11 Lana charged the county $10.00 per M. for handling old lumber.

Sept. 13, 1909, W. M. Lana, between sections 3 and 10, Valley, 44 ft. of 48 concrete tile, $5.50, $240.00.

Oct. 7, 1909, W. M. Lana, between sec. 11 and 14, Norwalk, concrete culvert, 5x8x55 with wing walls, $1,600.

Jan. 5, 1909, minute book (Record of Board of Supervisors) 11, p. 346. On motion the treasurer is allowed as salary for the ensuing term the sum of $8,500.00 per annum, the same to be in full for salary, deputy and clerk hire, he to turn into the county treasury all fees coming into his hands.

Minute book 11, p. 563, Jan. 14, 1911. Moved and seconded, that salary of all other county officers, deputies and assistants be placed the same as allowed during 1909, 1910. Carried.

B. Tinley & Mitchell were allowed $600.00 as attorneys' fees out of the funds of ditch No. 10 for the trial of the Shinn & Denton appeal case.

C. District court record 10, page 479, at Avoca, in case of Perks v. Board of Supervisors and Drainage District No. 10. April 19, 1912, by agreement it is ordered that the classification and taxation of lands of Frank Perks be reduced as follows:

Lot 3 aud. sub. nw se 15, 100 per cent. to 75 per cent., $285 to $214.75.

Lot 2, aud. sub. sw se, 20, 100 per cent. to 75 per cent., $380 to $285.00.

Lot 4, aud. sub. se se, 7.98, 100 per cent. to 75 per cent., $151.62 to $113.72.

The statute provides that the board of supervisors acting as drainage commissioners shall set and hear objections to the assessment of benefits, they fixing a time when they will hear objections and proof and change and modify any assessment of benefit that may seem to them unfair, but we know of no law after they have passed upon assessment of benefits, as they did in the Perks case, and after the matter is appealed to the courts, to permit them to enter into a compromise reducing the assessment, thereby imposing a burden upon all other owners of land within the drainage district.

The board of supervisors are but the agents of the drainage district and are legally and morally bound to protect the interest alike of all landowners within the district.

O. When they were considering the matter of the establishing of drainage district No. 10 and while the board was going over the proposed district viewing it to determine whether it was of public utility, convenience and necessary for them to establish it, and while at Carson they directed the auditor to purchase postal cards and send to each landowner, upon which he should vote for and against the establishment of the district. This the auditor did and all of the landowners with the exception of three or four marked their vote on the postal card and mailed them to the auditor. When the cards were counted, there were almost three to one voted against the establishment of the district.

Mr. Children took the cards into a separate room into the courthouse and proceeded to estimate the benefits that each landowner would be taxed for and he figured out that those who were in favor of the ditch would be required to pay more than those who were opposed. In other words, he would allow a vote for every dollar that each landowner would be required to pay, putting the lands of those who were in favor in the one hundred per cent. class, allowing them 100 votes for each acre of land, and placing the fifty per cent. class and lower who were opposed, allowing them 25 and 50 votes.

It must be remembered at this time that the commissioners the law allows to be appointed to classify the lands and assess the benefits had not been appointed and had not classified the lands and assessed the benefits. By this method he was able to figure out that a majority of dollars was in favor of the establishment of the district, thus defeating the will of a large majority of the individual landowners within the district, assuming that he was competent to judge and determine the benefits that each one would derive from the...