Chicago & N.W. Ry. Co. v. Fachman

• Decision Date: 10 December 1963
• Docket Number: No. 50956,50956
• Citation: 125 N.W.2d 210,255 Iowa 989
• Parties: CHICAGO AND NORTHWESTERN RAILWAY COMPANY, a corporation, Plaintiff, v. Honorable John M. FACHMAN, a Judge of the Municipal Court of the City of Sioux City, Woodbury County, Iowa, Defendant.
• Court: Iowa Supreme Court

Page 210

125 N.W.2d 210

255 Iowa 989

CHICAGO AND NORTHWESTERN RAILWAY COMPANY, a corporation, Plaintiff, v. Honorable John M. FACHMAN, a Judge of the Municipal Court of the City of Sioux City, Woodbury County, Iowa, Defendant.

No. 50956.

Supreme Court of Iowa.

Dec. 10, 1963.

Davis, Huebner, Johnson, Burt & Fulton, Des Moines, for plaintiff.

Evan Hultman, Atty. Gen. of Iowa, and John H. Allen, Asst. Atty. Gen., for defendant.

LARSON, Justice.

This case arises as a result of the filing of a county attorney's information in the Municipal Court of Sioux City charging the Chicago and Northwestern Railway Company with a violation of the criminal provisions contained in sections 477.51 and 477.52, Code of Iowa, 1962, I.C.A. The court overruled the company's demurrer specifically attacking the constitutionality of those sections insofar as they undertook to create a criminal offense, on the ground that the information contained matter which would constitute a legal defense or bar to the prosecution. Section 777.2(2), Code, 1962, I.C.A.

Section 477.51 provides as follows:

'Every railway corporation operating or doing business in the state shall as often as semimonthly pay to every employee engaged in its business all wages or salaries earned by such employee to a day not more than eighteen days prior to the date of such payment. Any employee who is absent at the time fixed for payment, or who for any other reason is not paid at that time, shall be paid thereafter at any time upon six days demand, and any employee leaving his or her employment or discharged therefrom shall be paid in full following his or her dismissal or voluntary leaving his or her employment at any time upon six days demand. No corporation coming within the meaning of this section shall by special contract with the employees or by any other means secure exemption from the provisions of this section. Each and every employee of any corporation coming within the meaning hereof shall have his or her right of action against any such corporation for the full amount of his or her wages due on each regular pay day as herein provided in any court of competent jurisdiction of this state.'

Section 477.52 provides as follows:

'Any corporation violating section 477.51 shall be deemed guilty of a misdemeanor and fined in a sum not less than twenty-five dollars, nor more than one hundred dollars, for each separate offense, and each and every failure or refusal to pay each employee the amount of wages due him or her at the time, or under the conditions required in section 477.51, shall constitute a separate offense.'

Following the overruling of the demurrer, plaintiff herein commenced original certiorari proceedings in this court. It is respondent's contention, first, that certiorari was not the proper procedure to review the order overruling the demurrer, and second, that the statutes in the respect charged are not unconstitutional. We cannot agree in either respect.

I. By the weight of authority and better reasoning, the constitutionality of a statute under which a party is charged with a crime may be raised by demurrer. State v. Talerico, 227 Iowa 1315, 290 N.W. 660; State of Minnesota ex rel. Clinton Falls Nursery Co. v. Steele County, 181 Minn. 427, 232 N.W. 737, 71 A.L.R. 1190 and notes; Ocean Accident & Guarantee Corp. v. Poulsen, 244 Wis. 286, 12 N.W.2d 129, and citations; 4 Wharton's Criminal Law and Procedure (12th Ed.), § 1872; 11 Am.Jur., Constitutional Law, § 126. Respondent concedes this proposition as well as the proposition that certiorari is the proper remedy for determining whether the lower court has acted illegally or exceeded its jurisdiction. Rule 306, R.C.P. 58 I.C.A.; Hohl v. Board of Education, 250 Iowa 502, 508, 94 N.W.2d 787, and citations.

It is respondent's contention, however, that certiorari is not proper procedure for reviewing the lower court's order overruling a demurrer to an information simply because the demurrer challenged the constitutionality of the criminal statute involved. Respondent argues that by filing its demurrer and arguing the same, it invoked the jurisdiction of the court and, although the court's ruling on the demurrer may have been erroneous, the proper and only method of review available to the company was then by appeal. The contention is without merit. Usually jurisdiction of the subject matter cannot be conferred by consent. Stucker v. County of Muscatine, 249 Iowa 485, 490, 87 N.W.2d 452; Hulburd v. Eblen, 239 Iowa 1060, 1064, 33 N.W.2d 825, 827, and citations. Since filing a demurrer was the only statutory procedure available to the company by which it could challenge the court's jurisdiction of the subject matter, we cannot find therein any consent to such jurisdiction even if it could have been given. Section 777.1, Code of 1962, I.C.A.

As we understand it, respondent contends that since the company could not appeal until a final judgment was rendered (section 793.2 of the Code, I.C.A.), it must plead to the charge and stand trial before a review could be had in this court. It cites as authority therefor State v. Anderson, 245 Iowa 99, 60 N.W.2d 794. For several reasons this is not the law in this jurisdiction. It was pointed out in the Anderson case: 'The Rules of Civil Procedure, provide a writ of certiorari may issue where a tribunal is alleged to have exceeded its proper jurisdiction or otherwise acted illegally. R.C.P. 306. * * * The statute here involved, section 793.2, Code of Iowa, which provides an appeal in a criminal case can only be taken from the final judgment, refers to appeals only. It does not apply to proceedings in certiorari.'

Furthermore, it is pointed out in Stucker v. County of Muscatine, supra, loc. cit. 489 of 249 Iowa, loc. cit. 455 of 87 N.W.2d, that if there were adjudications on jurisdictional merits, the determinations were final adjudication. Martin Bros. Box Co. v. Fritz, 228 Iowa 482, 292 N.W. 143; Scott v. Scott, 174 Iowa 740, 156 N.W. 834.

All authorities cited by respondent precede the adoption of the Iowa Rules of Civil Procedure, which deleted a former requirement for such a writ, i. e., that there was a lack of a plain, speedy and adequate remedy at law, so by rule we may now consider a jurisdictional question by way of a writ when 'an inferior tribunal, board of officer, exercising judicial functions, is alleged to have exceeded its, or his proper jurisdiction or otherwise acted illegally.' R.C.P. 306.

It is Hornbook law that a court must have jurisdiction of both the parties and the subject matter before it can validly act, and jurisdiction of the subject matter must be derived from a valid statute. When a court attempts to act under an unconstitutional statute, all proceedings based thereon are void. In the recent case of Knott v. Rawlings, 250 Iowa 892, 898, 96 N.W.2d 900, an indictment attacked by demurrer was overruled. As in the case at bar, an original certiorari action was brought before us, and we sustained the writ holding certiorari was a proper remedy to determine the legality of the court's action in overruling a demurrer to the indictment. County attorneys' informations are treated as indictments in such cases. Section 769.12, Code 1962, I.C.A.

Without further discussion, we conclude certiorari was the proper method of review of the municipal court's overruling of plaintiff's demurrer, that its ruling amounted to a final determination of the issue as to jurisdiction and under Rule 306 and the inherent power of this court was properly brought before the supreme court for determination of this vital question in the prosecution.

II. Plaintiff argues in three propositions that the provisions of Code sections 477.51 and 477.52, I.C.A., insofar as they undertake to create a criminal offense are void. We find it necessary to consider only its first proposition.

Plaintiff contends that insofar as sections 477.51 and 477.52 undertake to create a criminal offense, they are void, as being in violation of Section 6 of Article I of the Constitution of the State of Iowa, I.C.A., and also Amendment 14 to the Constitution of the United States, in that they deny plaintiff the equal protection of laws and are not laws of a general nature having a uniform operation.

Section 6, Article I, of the Constitution of Iowa, provides: '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.'

Amendment 14, Section 1, of the United States Constitution, provides: 'All persons born or naturlized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.'

Without attempting to confine our consideration to one or the other of these constitutional restrictions, our problem is whether these statutes deny the railroad company equal protection of the laws, and whether they are laws of a general nature having a uniform operation. Pierce v. Chicago & N. W. R. Co., 180 Iowa 1385, 164 N.W. 182; McGuire v. Chicago, B. & Q. R. Co., 131 Iowa 340, 108 N.W. 902, 33 L.R.A.,N.S., 706; State v. Garbroski, 111 Iowa 496, 82 N.W. 959, 56 L.R.A. 570. First, some general observations may be in order. The statutes enacted by the 36th General Assembly as Chapter 105, sections 1 and 2, are in their nature prohibitory with a criminal penalty for a violation. It is presumed statutes are constitutional, and the one asserting they are not has the burden to establish that allegation. Sperry & Hutchinson Co. v. Hoegh, 246 Iowa 9, 15, 65...