City of Des Moines v. District Court of Polk County, 47460

• Citation: 241 Iowa 256,41 N.W.2d 36
• Decision Date: 07 February 1950
• Docket Number: No. 47460,47460
• Parties: . Supreme Court of Iowa
• Court: United States State Supreme Court of Iowa

Page 36

41 N.W.2d 36

241 Iowa 256

CITY OF DES MOINES v. DISTRICT COURT OF POLK COUNTY et al.

No. 47460.

Supreme Court of Iowa.

Feb. 7, 1950.

Frank B. Hallagan, Corporation Counsel, S. L. Harvey, City Solicitor, Frank D. Bianco, Assistant City Solicitor, all of Des Moines, for petitioner.

J. R. McManus and Don G. Allen, both of Des Moines, for respondents BLISS, Chief Justice.

The petition in equity for the removal of Bennett as an officer of the city of Des Moines was filed in the office of the clerk of the district court of Polk County, Iowa, on October 6, 1948. The statutory provisions for a proceeding of this kind are in chapter 66, entitled 'Removal From Office', of the Iowa Code of 1946, I.C.A. The sections of the chapter which are particularly pertinent are: Se. 66.2 states that the jurisdiction for proceedings under the chapter shall be as follows: '* * * 3. As to county, municipal, or other officers, the district court of the county in which such officers' duties are to be performed.' Sec. 66.3 states that 'the petition for removal may be filed:

'1. By the attorney general in all cases. * * *

'5. As to all county amd municipal officers, by the county attorney of the county where the duties of the office are to be performed.' Sec. 66.5 states that 'the petition shall be filed in the name of the state of Iowa. The accused shall be named as defendant, * * *.' Sec. 66.11 states: 'Duty of county attorney. The county attorney of any county in which an action is instituted under section 66.10 shall, at the request of the attorney general, appear and assist in the prosecution of such action. In all other cases instituted in his county, the county attorney shall appear and prosecute when the officer sought to be removed is other than himself.' Sec. 66.18 provides that a removal proceeding shall be summary in its nature and shall be triable as an equitable action. Sec. 66.6 states that upon the filing of the petition for removal, notice of the time and place of the hearing shall be served upon the accused. When a judge outside of the judicial district in which the action is pending has been appointed to hear the action and has fixed a time and place for hearing, the clerk shall so notify the defendant.

In accord with these statutory proceedings the action for removal was entitled 'State of Iowa, Ex rel. Carroll O. Switzer, County Attorney of Polk County, Iowa, plaintiff, v. Myron J. Bennett, defendant.' On application to the Chief Justice of this court by the county attorney, the Honorable G. K. Thompson, a judge of the 18th Judicial District of Iowa, was appointed to hear and determine the removal proceedings. After a trial on the merits in which Edwin S. Thayer, assistant county attorney of Polk County, Iowa, appeared for and prosecuted the suit for the State of Iowa, as plaintiff, and J. R. McManus and Don G. Allen appeared as attorneys for and represented the defendant, Bennett, the court, upon full argument and submission, on November 12, 1948, ordered the petition of the plaintiff to be dismissed and the defendant restored to his office.

In the concluding paragraph of the court's opinion and decision, the court stated: 'Further orders will be made as to taxation of costs, defendant's counsel fees, and other necessary expenses, and the Court retains jurisdiction of this case for that purpose. To all of which plaintiff excepts.' Pursuant to said paragraph the cause came on for hearing on the matter of the taxation of attorneys' fees and other proper expenses, on November 26, 1948, and after the taking of evidence and consideration thereof, the court filed and entered the enrolled order, towit: 'The Court, being now fully advised and satisfied in the premises, finds that defendants' counsel, J. F. McManus and Don G. Allen, rendered services in the preparation and trial of this cause in the reasonable and actual value of $2000 * * *. The Court further finds that under provisions of Section 66.23, the defendant having been and being a public officer of the city of Des Moines, said attorney fees should be taxed against the city of Des Moines, together with the court costs herein, and judgment is hereby rendered in favor of defendant for the services of his attorneys, * * * in the amount of $2000, and for court costs, all against the city of Des Moines, Iowa.'

Section 66.23, Code of 1946, I.C.A., to which the court referred in its ruling provides as follows: 'If the petition be dismissed on final hearing on the merits, the defendant shall have judgment against the state, if the action was instituted by the attorney general, and against the county, city, town, or other subdivision of the state if the action is otherwise instituted, for the reasonable and necessary expenses incurred by the defendant in making his defense, including a reasonable attorney fee, to be fixed by the court or judge. Such payment shall be made out of any funds in the state treasury not otherwise appropriated, or out of the general fund of the county, city, town, or other subdivision of the state, as the case may be.'

Section 66.21, Code of 1946, I.C.A., provides, that when an appeal has been taken in a removal proceeding the supreme court shall advance the cause and give it precedence over all other causes on the calendar. No appeal is pending in this court. The order dismissing the plaintiffs' petition in the removal suit and restoring the defendant to his office is a finality. The amount of the allowance is not involved in this proceeding.

I. The cause is before the court on the respondent's return to the writ of certiorari setting out petitioner's petition and the court's findings, opinion and rulings. The petitioner and respondents each have filed a brief and argument.

Rule 306 of the Iowa Rules of Civil Procedure states: 'A writ of certiorari shall only be granted when specifically authorized by statute; or where an inferior tribunal, board or officer, exercising judicial functions, is alleged to have exceeded its, or his proper jurisdiction or otherwise acted illegally.' Rule 308 of said rules states: '* * * the relief by way of certiorari shall be strictly limited to questions of jurisdiction or illegality of the acts complained of, unless otherwise specially provided by statute.' There are no special statutory provisions involved in this proceeding.

The only proposition relied upon by the petitioner to sustain the writ of certiorari is, that the district court was without jurisdiction to render judgment against it for the attorney fees. The petitioner seeks to make two propositions by adding to the sentence just preceding, that the court 'exceeded its proper jurisdiction and acted illegally in entering said order and judgment and the same is utterly void for want of jurisdiction.' The sole basis for petitioner's contention that the district court was without jurisdiction or exceeded its jurisdiction, is thus stated by it: 'According to the record of said cause * * *, the petitioner * * * was never impleaded in said cause either as a party plaintiff or defendant. At no time was there any process or service of notice served upon the petitioner, * * * either in the inception of the action, during the trial of the cause on the merits, or on the hearing on the matter of the taxation of attorneys' fees and costs, or at any time. The petitioner herein was never at any time represented by counsel in any of the actions or proceedings had or taken therein. The petitioner was never at any time a party to the action.'

If all factual matters in the quoted excerpt were accepted as true, they do not establish either lack, or excess, of jurisdiction in the district court in rendering judgment for the attorneys' fees and other expenses of Bennett in making his defense, against the city of Des Moines.

The petitioner does not contend that chapter 66, or any section of it, is invalid, or contravenes the constitution of Iowa. We must accept it as a valid and a constitutional enactment. Neither does the petitioner point out any section of the chapter that was violated in bringing the removal action or in the preparation of the petition or in the prosecution of the trial. Petitioner complained because it was not joined as a party plaintiff, or as a party defendant. The statute designates who shall be the parties to the action. It specifies that the petition shall be filed in the name of the state, that is, the state shall be the plaintiff, and that the 'accused' shall be named as the defendant. There is no requirement in the statute that the state, district, county, city, or town, or other municipality, of which the accused is an officer, shall be made a party to the proceeding as plaintiff, defendant, or intervenor.

Petitioner complains that no notice was ever served upon it. Not being a party, it was not entitled to any notice. The only notices provided for in the chapter are those to be served on, or given to, the accused. Petitioner refers to the action as involving two proceedings, one to determine the issue of removal, and the other to determine and tax the costs. Both matters are but parts of a single action. If the petition is dismissed on the merits both matters are ipso facto thereby determined. If the accused is an officer of the state, and the action was instituted by the attorney general, the defendant shall have judgment against the state. But if the action was instituted by the county attorney, or otherwise instituted, 'the defendant shall have judgment * * * against the county, city, town, or other subdivision of the state * * * for the reasonable and necessary expenses incurred by the defendant in making his defense, including a reasonable attorney fee, to be fixed by the court or judge.' The major part of the expense would be the fees of the attorneys. Section 66.23 of the chapter is evidence that the legislature thought the judge or court before whom the proceedings were had was the one best qualified to...