Eckerson v. City of Des Moines

• Decision Date: 18 February 1908
• Citation: 115 N.W. 177,137 Iowa 452
• Parties: S. A. ECKERSON, Appellant, v. CITY OF DES MOINES ET AL., Appellees; A. M. HUSTON ET AL., Interveners, Appellants
• Court: Iowa Supreme Court

115 N.W. 177

137 Iowa 452

S. A. ECKERSON, Appellant, v. CITY OF DES MOINES ET AL., Appellees; A. M. HUSTON ET AL., Interveners, Appellants

Supreme Court of Iowa, Des Moines

February 18, 1908

Appeal from Polk District Court.--HON. JAMES A. HOWE, Judge.

ACTION in equity for an injunctional decree. A. M. Huston and the board of park commissioners of the city of Des Moines intervened, and filed petitions respectively. The petitions of plaintiffs and the several petitions of the interveners were held bad on demurrer, and from the ruling entered plaintiffs and interveners appeal.-- Affirmed.

Affirmed.

Samson & Dillon, for appellant S. A. Eckerson.

Carr Hewitt, Parker & Wright, for appellant A. M. Huston.

W. L Read, for appellants board of park commissioners.

W. H. Bremner, I. M. Earle, M. H. Cohen, and W. M. McLaughlin, for appellees.

OPINION

BISHOP, J.

The defendant city of Des Moines is a city of the first class, organized under the general statute, and having a population of over forty thousand. The other defendants are the mayor, treasurer, and members of the city council of said city. The plaintiffs and the intervener Huston are residents, citizens, and taxpayers of said city, and the intervener board of park commissioners of the city of Des Moines is a body existing adjunct to said city in virtue of the provisions of chapter 9, title 5, of the Code. This action grows out of an attempt on the part of the defendant city to advantage itself of the provisions of chapter 48, Acts Thirty-second General Assembly, entitled "An act to provide for the government of certain cities, and the adoption thereof by special election. 'Additional to title five of the Code.'" As the questions in the case are addressed in the main to the validity of said act on constitutional grounds, we shall set the same out with sufficient fullness to make clear the field of controversy. By section 1 of the act it is provided that "any city of the first class, or with special charter, now or hereafter having a population of twenty-five thousand or over, . . . may become organized as a city under the provisions of this act by proceeding as hereinafter provided." Section 2 provides that upon petition of electors equal in number to twenty-five per centum of the votes cast for mayor at the last preceding city election, the mayor "shall, by proclamation, submit the question of organizing as a city under this act at a special election to be held at a time therein specified." If the majority of the votes cast shall be in favor thereof, the city shall thereupon proceed to the election of a mayor and four councilmen. Section 3 provides that all laws governing cities of the first class, and not inconsistent with the provisions of this act, shall apply to and govern cities organized under this act. Further, all by-laws, ordinances, and resolutions lawfully passed and in force in such city under its former organization shall remain in force; the territorial limits of the city shall remain the same, "and all rights and property of every description which were vested in any such city under its former organization, shall vest in the same under the organization herein contemplated, and no right or liability either in favor of or against it, existing at the time, and no suit or prosecution of any kind shall be affected by such change, unless otherwise provided for in this act." Section 4 provides for the election of a mayor and four councilmen, to be nominated and elected at large, and for the terms of their office and of the officers authorized by the act to be appointed. Section 5 provides for the nomination of candidates for mayor and councilmen at a primary election. In brief, the provisions are that any person desiring to be a candidate shall file with the clerk a statement of his candidacy, and a request that his name be placed on the official primary ballot, and such statement shall be accompanied by a petition signed by at least twenty-five electors. The clerk is required to make up and have printed a primary ballot containing the names in alphabetical order of all candidates who have filed statements and requests. "And no other names shall be placed on the general ballot." At the primary election each elector shall vote for one candidate for mayor, and four candidates for councilmen. "The two candidates receiving the highest number of votes for mayor shall be the candidates, and the only candidates whose names shall be placed upon the ballot for mayor at the . . . election, and the eight candidates receiving the highest number of votes for councilmen shall be the candidates whose names shall be placed upon the ballot for councilmen at such municipal election."

By section 6 it is provided that every such city shall be governed by the council consisting of the mayor and four councilmen, each of whom shall have the right to vote on all questions; fixes the number necessary to a quorum; provides that the mayor shall preside at all meetings, but shall have no power to veto. Section 7 is as follows: "The council shall have and possess and the council and its members shall exercise all executive, legislative and judicial powers and duties now had, possessed and exercised by the mayor, city council, board of public works, park commissioners, board of police and fire commissioners, board of waterworks trustees, board of library trustees, solicitor, assessor, treasurer, auditor, city engineer, and other executive and administrative officers in cities of the first class and cities acting under special charter. The executive and administrative powers, authority and duties in such cities shall be distributed into and among five departments, as follows: 1. Department of public affairs. 2. Department of accounts and finances. 3. Department of public safety. 4. Department of streets and public improvements. 5. Department of parks and public property. The council shall determine the powers and duties to be performed by, and assign them to the appropriate department; shall prescribe the powers and duties of officers and employes; . . . and may make such other rules and regulations as may be necessary or proper for the efficient and economical conduct of the business of the city." By section 8 it is provided that the mayor shall be superintendent of the department of public works, and to each of the other departments a councilman shall be elected by the council as superintendent. The council shall also elect a city clerk, solicitor, assessor, treasurer, auditor, engineer, marshal, chief of fire department, street commissioner, three library trustees, and such other officers and assistants as shall be provided for by ordinance and necessary to the proper and efficient conduct of the affairs of the city. In cities not having a superior court, a police judge shall also be appointed. By section 18 of the act it is provided that the holder of any elective office may be removed at any time by the electorate of the city, and the method of procedure which shall be by election based on petition is provided for. At such election the officer sought to be removed may be a candidate. The method of removal thus provided for is declared to be cumulative and additional to the methods otherwise provided for by law. By section 19 it is provided that any proposed ordinance may be submitted to the council by petition. If the petition be signed by the number of electors specified, and contains a request therefor, the council shall either (a) pass the ordinance within twenty days, or (b) the council shall submit the same to a vote of the electors of the city. If voted for by a majority of the electors voting, such ordinance shall become valid and binding as an ordinance of the city. An ordinance so adopted can only be amended or repealed by a majority vote of the electors. By section 20 it is provided that no ordinance passed by the council -- except such as are required by the general laws of the state, or in specified cases of emergency -- shall go into effect before ten days from the time of its final passage; and if, during said ten days, the passage of the ordinance shall be protested by twenty-five per cent. of the electors the ordinance shall be suspended from going into operation, and it shall be the duty of the council to reconsider such ordinance, and, if not repealed, to submit the same to a vote of the electors. By section 21 it is provided that after any city shall have operated under the act for six years, on petition, the question of abandoning the organization shall be submitted to a vote of the electors, and if carried by a majority vote the city shall resume operations under the general law of the state then applicable to cities of its population.

It is to be observed that the system of municipal government thus sought to be authorized differs radically in many respects from the general system provided for by title 5 of the Code. However, as the act does not contemplate any change in the functions of municipal government, but concerns only the instrumentalities through which such functions are to be exercised, and the form and manner of exercise, and as the right of the Legislature in general to dictate changes in such respect is not challenged, we are not required to enter into detail respecting such points of difference.

Plaintiffs allege that in April, 1907, a petition in form as required and signed by the requisite number of resident voters, was presented to the mayor of the defendant city, requesting that the question of organizing the city under said act of the Thirty-Second General Assembly be submitted to an election. That, pursuant thereto, a special election was called and held at which a majority of the votes cast were in favor of organizing under said...