Des Moines Park Bd. v. City of Des Moines

• Decision Date: 12 March 1940
• Docket Number: 45135.
• Citation: 290 N.W. 680,228 Iowa 904
• Parties: DES MOINES PARK BOARD v. CITY OF DES MOINES et al.
• Court: Iowa Supreme Court

290 N.W. 680

228 Iowa 904

DES MOINES PARK BOARD v. CITY OF DES MOINES et al.

No. 45135.

Supreme Court of Iowa.

March 12, 1940

Appeal from District Court, Polk County; Russell Jordan, Judge.

A writ of certiorari issued by the district court of Polk County having been quashed on defendants' motion, plaintiff appeals.

Affirmed.

Chauncey A. Weaver, of Des Moines, for appellant.

F. T Van Liew, B. J. Flick, Sam Orebaugh, Frank W. Davis, and George M. Faul, all of Des Moines, for appellees.

SAGER Justice.

On March 16, 1939, the superintendent of parks of the city of Des Moines appointed Keeling custodian of Woodland Cemetery. This appointment was confirmed by the city council. On April 7th the plaintiff board, by majority vote, appointed Kounce custodian of the same cemetery. Both were in good standing under the civil service. On April 17, 1939, Keeling appealed to the civil service commission for confirmation which was given on the 23rd day of May of the same year. The members of the park board, contending the power of appointment to be within their sole jurisdiction, sought by the writ to challenge the appointment of Keeling.

After the writ was issued, defendants filed their motion to set aside and to quash on the grounds: first, that it was issued without notice; and second, the plaintiff board was not a corporation; was without power to sue or be sued and was merely a legal subdivision of defendant city for governmental purposes; that the district court was without jurisdiction for the reason that the real issue was the right to hold office, and that quo warranto was the only proceeding available to the contestants; and that the park board was not the real party in interest. The trial court deeming it unnecessary to consider all the grounds of the motion sustained it as having been improvidently issued for the reason that " plaintiff, Des Moines Park Board, has not legal capacity to sue or to be sued in this: Plaintiff is merely a board created as a legal subdivision of the City of Des Moines for governmental purposes, and the law has not clothed the plaintiff with corporate capacity or given it the right to sue or be sued."

The diligence and learning of counsel have invited us into many legal fields into which we find it unnecessary to enter. For the most part the authorities cited in the briefs deal with well understood principles of law not involved here. Appellant argues at considerable length over the propriety of the court having quashed the writ because " improvidently" issued. We regard this use of the term unimportant. The question was: Would the writ have issued under the circumstances if the court had been advised of the true situation? Or should it have sustained the writ after learning of the questions actually before it and the legal status of the persons interested therein? The trial court held as stated that the plaintiff board had no capacity to sue. In so holding it was right.

An examination of chapter 293-D1, under which the plaintiff board was constituted, fails to disclose any of the...