State ex rel. Turner v. Iowa State Highway Commission

• Decision Date: 09 April 1971
• Docket Number: No. 54152,54152
• Citation: 186 N.W.2d 141
• Parties: STATE of Iowa ex rel. Richard C. TURNER, Attorney General, Appellee, v. IOWA STATE HIGHWAY COMMISSION and its commissioners, Derby Thompson, Chairman, Kort Voorhees, Robert Barry, William Gray and Bernard Mercer and Joseph R. Coupal, Director of highways, Appellants, Gene A. Schlaegel, Clifton C. Lamborn and Charles G. Mogged, Intervenors.
• Court: Iowa Supreme Court

Page 141

186 N.W.2d 141

STATE of Iowa ex rel. Richard C. TURNER, Attorney General, Appellee, v. IOWA STATE HIGHWAY COMMISSION and its commissioners, Derby Thompson, Chairman, Kort Voorhees, Robert Barry, William Gray and Bernard Mercer and Joseph R. Coupal, Director of highways, Appellants Gene A. Schlaegel, Clifton C. Lamborn and Charles G. Mogged, Intervenors.

No. 54152.

Supreme Court of Iowa.

April 9, 1971.

Rehearing Denied June 14, 1971.

Dickinson, Throckmorton, Parker, Mannheimer & Raife, Des Moines, for appellants.

Richard C. Turner, Atty. Gen. ,Richard E. Haesemeyer, Sol. Gen., for appellee.

D. C. Nolan, Iowa City, for Gene A. Schlaegel and Charles G. Mogged, intervenors.

Goodenow & Wright, Maquoketa, for Clifton C. Lamborn, intervenor.

REES, Justice.

This is an action in equity brought by the State of Iowa on the relation of Richard C. Turner, its Attorney General, to enjoin the Highway Commission of the State of Iowa, the individual members thereof, and the Director of Highways, from removing to other locations any of the resident engineers' offices established by the highway commission. The relator Attorney General asserted in his petition the removal of presently established resident engineers' offices would be in violation of section 5 of House File 823, chapter 30, First Session, Sixty-third General Assembly (1969).

Gene A. Schlaegel, a lawyer, realtor and taxpayer of Johnson County, Iowa, Clifton C. Lamborn, State Senator from the 19th District, resident of Maquoketa, and likewise a taxpayer, and Charles G. Mogged, then State Senator from the Second Senatorial District, filed petitions of intervention allying themselves with the plaintiff.

Plaintiff's petition was filed on September 26, 1969, and on the same date an order was entered by the Honorable Wade Clarke, Judge of the Ninth Judicial District, directing the issuance out of the office of the clerk of the district court of Polk County of a temporary writ of injunction, enjoining and restraining the defendants from removing the 'permanent resident engineers' offices presently established by the Iowa State Highway Commission from their present location until further order of this Court.' The defendant subsequently filed motions to dismiss plaintiff's petition, to dissolve the temporary injunction, or to modify the same, which came on for hearing on October 13, 1969, at which hearing evidence was taken, and on October 30, 1969 Judge Clarke overruled defendant's motion to dismiss, and ordered that the writ of injunction theretofore issued should continue to be in full force and effect for the purpose expressed in the writ. On the same date the court overruled motions of the defendant to dismiss the petitions of intervention. Following such rulings, further pleadings were filed and the issues were made up and the cause thereafter came on for trial and hearing before the Honorable Gibson C. Holliday, a Judge of the Ninth Judicial district. Evidence was introduced and on January 12, 1970 there was filed the court's finding of fact, conclusions of law and decree in which the court ordered the temporary injunction theretofore issued on September 26, 1969 be made permanent, and that the defendants and each of them were permanently enjoined and restrained from removing the permanent resident engineers' offices presently established by the Iowa State Highway Commission from their present locations. The court retained jurisdiction for the purpose of resolving questions which might later arise regarding the transfer of personnel or equipment from any of said offices or moving any of said offices within a particular city or town. A motion for clarification of the injunction was later filed by the defendants and an order clarifying the same in minor respects was subsequently entered by the court.

House File 823 of the Acts of the Sixty-third General Assembly is, or was, an appropriation measure. It provided for appropriations from the primary road fund to the state highway commission for each year of the biennium beginning July 1, 1969 and ending June 30, 1971 of funds for administration, support services, planning, development, headquarters operations, field operations, additional equipment and replacement equipment. Section 5 of House File 823 is as follows,

'Sec. 5. The permanent resident engineers' offices presently established by the State Highway Commission shall not be moved from their locations; however, the commission may establish not more than two temporary resident engineers' offices within the state as needed.'

After passage in both houses of the general assembly, the bill was submitted to the Governor for his approval or executive action. On June 20, 1969 the Governor transmitted to the Secretary of State the measure approving the same with the exception of item 5 above referred to. In the letter of transmittal to the Secretary of State, the Governor stated,

'House File 823 was approved June 20, 1969 with the following exception: 'I am unable to approve item 5 designated as 'Sec. 5' in the Act * * *. I hereby disapprove this item as provided for in the Amendment to the Constitution of the State of Iowa adopted in 1968.

'My action is based on the following: The function of the Highway Commission is to construct and maintain roads and highways in the State of Iowa in the most efficient and effective manner possible.

'Restricting the location or relocation of resident engineers' offices will inhibit the commission's efforts to operate at maximum efficiency.

'Mr. Joseph R. Coupal, director of highways, estimates that this restriction could cost the State of Iowa an estimated $100,000 during the biennium.'

No endorsement of any kind was made on the bill itself when it was transmitted to the Secretary of State's office by the Governor. It was the obvious intention of the Governor to exercise his power of item veto as to section 5 of House File 823, acting under the power and authority to veto the measure in part afforded the Governor by the so-called 'item veto' amendment to the Constitution by vote of the electorate of the state at the general election in November of 1968. The constitutional amendment in question is amendatory to Article 3, Section 16, Constitution, and provides,

'The governor may approve appropriation bills in whole or in part, and may disapprove any item of any appropriation bill; and the part approved shall become a law. Any item of an appropriation bill disapproved by the governor shall be returned, with his objections, to the house in which it originated, or shall be deposited by him in the office of the secretary of state in the case of an appropriation bill submitted to the governor for his approval during the last three days of a session of the General Assembly, and the procedure in each case shall be the same as provided for other bills. Any such item of an appropriation bill may be enacted into law notwithstanding the governor's objections, in the same manner as provided for other bills.'

It was established the measure--House File 823--after passage by both houses of the General Assembly reached the Governor during the last three days of the first session of the Sixty-third General Assembly, and was then deposited with the Secretary of State with the letter from the Governor above referred to within 30 days of the adjournment of the Legislature.

The parties seem to be in agreement as to the exact issues before us, in that while they couch reference to the issues in different phraseology they seem to agree that the issues before the trial court made by motion, answer and reply, and which are raised by this appeal, are:

(1) Whether the court below had jurisdiction of the subject matter of an action instituted by the Attorney General of the state against the State Highway Commission, its commissioners and director, and of the intervenors on the side of the plaintiff;

(2) Whether the Governor constitutionally exercised his item veto power over section 5 of House File 823 of the Acts of the Sixty-third General Assembly; and

(3) Whether section 5 of House File 823 of the Acts of the 63rd G.A. is constitutional.

In addition to the foregoing issues which the parties agree are before us, the plaintiff asserts that an additional issue is presented by the appeal: (4) Whether even if section 5 had been effectively vetoed, there was any appropriation for moving any of the highway commission's permanent resident engineers' offices.

I. In their first proposition upon which they rely for reversal, the defendants assert the action is beyond the subject matter jurisdiction of the court for that (a) the court is deprived of jurisdiction by reason of section 679.19, Code 1966; (b) the same party is both plaintiff and defendant; (c) plaintiff lacks the power and authority as Attorney General to maintain the action; and (d) the interventions are insufficient to clothe the court with jurisdiction.

Section 679.19, Code 1966, provides:

'679.19 Disputes between governmental agencies. Any litigation between administrative departments, commissions or boards of the state government is prohibited. All disputes between said governmental agencies shall be submitted to a board of arbitration of three members to be composed of two members to be appointed by the departments involved in the dispute and a third member to be appointed by the governor. The decision of the board shall be final.'

That the defendant highway commission is a commission of the State government seems to be unquestioned. The status of the Attorney General, however, with relation to section 679.19 is not so readily determined. The defendants contend the Attorney General's office is an administrative department, a part of the executive branch of state government, namely, the Department of Justice. On the other hand, the Attorney General argues that his office, or department, is not a part of the executive branch of government, but rather a part of...