City of Nevada v. Slemmons

• Decision Date: 17 July 1953
• Docket Number: No. 48331,48331
• Citation: 59 N.W.2d 793,244 Iowa 1068,43 A.L.R.2d 693
• Parties: , 43 A.L.R.2d 693 CITY OF NEVADA v. SLEMMONS.
• Court: Iowa Supreme Court

Page 793

59 N.W.2d 793

244 Iowa 1068, 43 A.L.R.2d 693

CITY OF NEVADA v. SLEMMONS.

No. 48331.

Supreme Court of Iowa.

July 17, 1953.

Hadley & Countryman, Nevada, for appellant.

Frank Ambrose, Nevada, for appellee.

LARSON, Justice.

This matter was submitted to the court on the pleadings and the facts are not in dispute. By statute the city of Nevada, Iowa is entitled to six councilmen. On May 12, 1952, one councilman resigned and his resignation was duly accepted May 21, 1952. At a council meeting on July 16, 1952, the name of the defendant, one Kenneth Slemmons, residing in the proper ward, was placed in nomination and by voice vote received four of the votes of the remaining five councilmen. When the voice action was questioned by the city solicitor, defendant did not qualify, but his name was again placed in nomination at a council meeting on July 23, 1952, along with other candidates. When a written ballot was taken of the remaining five councilmen defendant received three votes and another candidate two votes. Defendant immediately took the oath of office and performed the duties of councilman; attended the next seven meetings and was paid therefor. Thereafter the city solicitor in an opinion to the council held that defendant was not a duly elected and qualified councilman for the reason that he had not received a majority vote of all the members of the council. The district court decided statutory requirements were not followed and held defendant was 'not a duly elected member of said council'. Defendant appealed.

I. This action is authorized in Rule 261 of the Rules of Civil Procedure, 58 I.C.A., and the question to be decided is whether or not valid and proper procedure was taken by the council so that defendant is now a duly elected and qualified councilman of the city of Nevada, Iowa. This court has not heretofore been called upon to pass upon this question though a number of attorney general opinions during the past fifty years have been issued and followed by municipalities upon similar questions. See Attorney Generals' Opinions, 1909 p. 104; 1914, p. 28; 1920, p. 780; 1935-36, p. 155.

However, when the controversy finally reaches the court for determination, the opinions of the Attorney General rendered in due course, while entitled to careful consideration by the courts, and quite generally regarded as highly persuasive, are not binding on the judiciary, and it is our duty now to enter upon an independent inquiry as to the interpretation to be placed upon the statutes involved, relating to the filling of vacancies on city and town councils. 2 R.C.L. 920; 5 Am.Jur. 243, § 14. We must now determine from the pertinent sections of the code, the legislative intent. It is difficult also to obtain persuasive help from outside authorities, for the language of other statutes may or may not bear a likeness to our own, especially where relative statutes must as here be considered. In such cases all statutes must be considered relating to the problem, for it is a cardinal principle of statutory construction that the intent is to be gleaned from the whole statute or statutes, relating to the matter, and not from any particular part, with due consideration for the object to be attained. State, for use of City of Estherville v. Hanson, 210 Iowa 773, 231 N.W. 428; Davelaar v. Marion County, 224 Iowa 669, 277 N.W. 744. The laws of Iowa pertaining to municipalities were substantially revised in 1951 by the 54th General Assembly.

II. Subsection 8 of section 1, Chapter 147, Acts of the 54th General Assembly provides the council shall:

'Elect by ballot persons to fill vacancies in offices not filled by election by the council, and the person receiving a majority of the votes of the whole number of members shall be declared elected to fill the vacancy.' (Italics ours.) I.C.A. § 368A.1, subd. 8.

We note that this is the identical language used in the previous law, section 363.36, subsection 8, Code of 1950, I.C.A., and therefore we conclude no change from past practices or procedure was necessary or desirable. Such powers and authority have been entrusted to city and town councils since 1904 when by Chapter 41, Acts of the 30th General Assembly, the statutory provision for special elections to fill such vacancies was repealed and the power and authority conferred upon the council to fill vacancies pending the next regular municipal election.

The troublesome language of 'a majority of the vote of the whole number of members' has received consideration in a well-written Attorney General's opinion found in Attorney General Opinions, 1907, p. 104. It was then, as now, contended that this language meant the whole number of members to which the corporation was entitled, and this view seemed to be that taken by the district court in the matter before us. We do not agree with that conclusion.

In this connection it should be noted that the legislature included that particular phrase in subsection 2, section 1, Chapter 147, Acts of the 54th General Assembly, the other pertinent statute here involved. This subsection provides the procedure of the council in conducting the business affairs of the municipal corporation. It provides: 'Determine the time and place of holding * * * meetings, which at all times shall be open to the public, * * *. A majority of the whole number of members to which the corporation is entitled shall be necessary to constitute a quorum.' I.C.A., § 368A.1, subd. 2. (Italics ours.)

It is also noteworthy that this directional procedure came after the council had assembled and organized as provided in subsection 1, section 1 of said chapter and we believe was carefully inserted to insure that a definite number of councilmen representing the public interest would be present when business of the municipal corporation was attended. The italicized words do not appear in subsection 8 of section 1 of the act, and significance must be given thereto in determining the intent of the legislature. In order to determine this intent, it is fair to consider both the words used and deleted in companion subsections, in addition to the circumstances involved. It was provided in subsection 8, after one or more vacancies occur, that the majority of the whole number of members of the council could elect properly qualified persons to those vacancies. This was necessary in order we feel to obtain a membership of the council that may be required for a quorum. At each meeting of the council a quorum is required to conduct the business affairs of the municipality. The meaning of the 'whole number of members' in subsection 8, therefore we hold was intended to relate to the whole remaining members of the council. It has already been decided by the court, and it is perfectly clear that a majority of the remaining members must vote for the successful candidate and that a majority of those present at the meeting whether a quorum or not does not meet the expressed requirements of the law. State v. Dickie, 47 Iowa 629, 37 Am.Jur. 674 § 61.

Public policy also demands that a majority of the remaining councilmen should have the power to act in a manner that will prevent a total failure of the corporate function--which in a...