Gamel v. Veterans Memorial Auditorium Commission

• Citation: 272 N.W.2d 472
• Decision Date: 20 December 1978
• Docket Number: No. 2-61231,2-61231
• Parties: Raymond G. GAMEL and Roy Berger, Appellees, v. VETERANS MEMORIAL AUDITORIUM COMMISSION, Ray C. Stiles, Commissioner, Harry J. Bradley, Jr., Commissioner, Russell H. Laird, Commissioner, Everett S. Newcomb, Commissioner and Peter Watrous, Commissioner, Appellants.
• Court: United States State Supreme Court of Iowa

Page 472

272 N.W.2d 472

Raymond G. GAMEL and Roy Berger, Appellees, v. VETERANS MEMORIAL AUDITORIUM COMMISSION, Ray C. Stiles, Commissioner, Harry J. Bradley, Jr., Commissioner, Russell H. Laird, Commissioner, Everett S. Newcomb, Commissioner and Peter Watrous, Commissioner, Appellants.

No. 2-61231.

Supreme Court of Iowa.

Dec. 20, 1978.

James P. Irish, Altoona, for appellants.

Gordon E. Allen, Des Moines, for appellees.

Considered en banc.

ALLBEE, Justice.

This case presents the second assault on the constitutionality of § 37.10, The Code, which provides for the qualifications and selection of commissioners for military veterans memorial buildings and monuments. The results of the first are recorded in Vietnam Veterans Against the War v. Veterans Mem. Aud. Comm'n, 211 N.W.2d 333 (Iowa 1973). In that case six members of his court decided that the plaintiffs lacked standing. The dissent found standing, reached the merits and found part of § 37.10 unconstitutional.

Chapter 37 of the Code deals with the erection and maintenance of buildings and monuments memorializing veterans of the armed services. It provides, in § 37.9, that when a building or monument is to be built, a commission shall be appointed to have charge of the construction of the edifice and to manage and control it when completed. Maintenance is accomplished with public funds. § 37.8. Those funds are disbursed only on the written order of the commissioners. § 37.16. The section under attack, § 37.10, is the provision by which commissioners are selected and appointed. ¹ In its first paragraph, it requires that commissioners be honorably discharged veterans. Its second paragraph establishes a procedure whereby eight named veterans organizations select five commissioners. The names of those selected are forwarded to, in this case, the city council of Des Moines which "shall by resolution appoint them as such commissioners." No veteran or member of the general public who is not a member of one of the eight named organizations has any voice in the selection of commissioners.

The defendants in this action are the commission and individual commissioners charged with the responsibility of managing and maintaining the Veterans Memorial Auditorium in Des Moines. Plaintiffs are both residents of Des Moines and honorably discharged veterans who are not members of any of the organizations named in § 37.10. They therefore have standing to challenge the selection procedure under the test of Vietnam Veterans, 211 N.W.2d at 335.

The auditorium is used for diverse purposes, including high school basketball and wrestling, college basketball, symphony and rock concerts, graduation exercises, circuses, professional wrestling and a variety of shows and conventions. Full time employees receive consideration as employees of the City of Des Moines and benefits of city employment including insurance and pensions.

The petition alleged that the selection process provided by § 37.10 was constitutionally deficient in four respects. It claimed plaintiffs were denied equal protection of the law guaranteed by the fourteenth amendment to the United States Constitution, both as veterans and as residents of Des Moines generally. It alleged infringement of plaintiffs' first amendment freedoms of speech and association. It complained that § 37.10 was an unlawful delegation of legislative power, in violation of article III, § 1 of the Iowa Constitution. And it challenged the requirement that commissioners must be veterans, an equal protection argument claiming discrimination against non-veteran citizens of Des Moines. The two allegations that equal protection has been denied to residents of Des Moines generally are new and broader claims which were not made in Vietnam Veterans.

Trial court decided that the plaintiffs' delegation and equal protection claims were meritorious, relying upon the dissent in Vietnam Veterans, 211 N.W.2d at 338-41. It therefore declared the commissioners' positions vacant and adopted the remedy proposed by the Vietnam Veterans dissent: the city council of Des Moines would appoint commissioners pursuant to § 37.14. 211 N.W.2d at 342. That portion of the decree was directed at the second paragraph of § 37.10, the selection process. Trial court, however, went beyond the Vietnam Veterans dissent to nullify the requirement of the first paragraph and provide that the commissioners need not be veterans. Defendant commissioners filed a timely notice of appeal. Because the case was heard in equity, our review is de novo. We consider only the state law question because it is dispositive of the appeal.

I. The selection procedure. The delegation of state sovereign power is a matter of state constitutional law. Iron Workers Local No. 67 v. Hart, 191 N.W.2d 758, 772 (Iowa 1971). The Federal Constitution is not implicated in any way. Potter v. New Jersey Supreme Court, 403 F.Supp. 1036, 1039 (D.N.J.1975). The provision in which plaintiffs place reliance, article III, § 1, provides:

General assembly. Section 1. The Legislative authority of this State shall be vested in a General Assembly, which shall consist of a Senate and House of Representatives . . . . ²

State courts have expressed two views on the propriety of delegation of state power to private persons. Vietnam Veterans, 211 N.W.2d at 338-9 (McCormick, J., dissenting). The first is exemplified by Ashmore v. Greater Greenville Sewer Dist., 211 S.C. 77, 44 S.E.2d 88 (1947). That case held a delegation unconstitutional because there was a "lack of substantial and rational relation between the appointive or elective power and the function of government which the appointees or electees are to perform." 211 S.C. at 94, 44 S.E.2d at 96. Application of this standard in later South Carolina cases resulted in upholding two statutes in the face of constitutional attack. In Floyd v. Thornton, 220 S.C. 414, 421-2, 68 S.E.2d 334 (1951) the statute provided that members of the board of bank control would be appointed on recommendation of a bank association, a savings and loan association and representatives of cash depositories. The delegation was upheld because the organizations were "especially qualified" to make such selections. 220 S.C. at 421-2, 68 S.E.2d at 337-8. And in State v. Taylor, 223 S.C. 526, 77 S.E.2d 195 (1953) (per curiam) a technical livestock committee, which was empowered to promulgate rules enforceable by criminal penalties, was appointed by an agricultural college board of trustees and officers of the Livestock Dealers Association. Due to the special qualifications of these groups, 223 S.C. at 531, 77 S.E.2d at 197-8, the delegation was upheld.

A similar view finds expression in Humane Society v. New Jersey State Fish and Game Council, 70 N.J. 565, 362 A.2d 20 (1976). The facts were akin to those here. Various private organizations, such as hunting clubs and an association of commercial fishermen, nominated members of the Fish and Game Council, who were then appointed by the governor. Plaintiffs were environmentalists who alleged that their interests were at variance with the appointing groups named in the statute. The statute was upheld. In examining the delegation problem, the court said that delegation to private persons is permissible if sufficient safeguards exist. "The test is whether the particular delegation is reasonable under the circumstances considering the purpose and aim of the statute." 70 N.J. at 579, 362 A.2d at 28. Thus, the idea of safeguards enters the delegation to private parties controversy, just as it has become important in the area of delegation to administrative agencies. See Board of Sup'rs of Linn County v. Dept. of Revenue, 263 N.W.2d 227, 238 (Iowa 1978); Town of Arlington v. Board of Conciliation & Arbit., 370 Mass. 769, 352 N.E.2d 914, 920 (1976) (dealing with arbitration award to firefighters and policemen; "delegations to private persons are not forbidden so long as proper safeguards are provided"); Southern Pacific Transp. Co. v. Public Utilities Comm'n, 18 Cal.3d 308, 313, 134 Cal.Rptr. 189, 192, 556 P.2d 289, 292 (1976) ("The Legislature may not confer upon private persons unrestricted authority to make administrative determinations."). Of course, none of these last three are appointment cases, but we give consideration to the general standard.

The second view, and that supported by the Vietnam Veterans dissent, is that private individuals cannot be empowered to select boards to spend public funds, no matter how well qualified they may be. For this the dissent cites Opinion of Justices, 337 Mass. 777, 150 N.E.2d 693 (1958); State v. Schorr, 6 Terry (45 Del.) 18, 65 A.2d 810 (1948), and Tucker v. State, 218 Ind. 614, 35 N.E.2d 270 (1941). The discussions of these cases in the Vietnam Veterans dissent, 211 N.W.2d at 338-9, are entirely adequate and do not bear repeating here. It is sufficient to note that they support the strict view which the Vietnam Veterans dissent would adopt.

At least three other states apply this strict rule. In Morrow v. Wipf, 22 S.D. 146, 158-9, 115 N.W. 1121, 1126-7 (1908) the statute being considered provided that, in the absence of a sufficient contest over the selection of delegates, the county central committee of a political party could choose delegates to the state convention without a county convention. This was found to be an impermissible delegation of legislative authority. The court was concerned that an unscrupulous committee would never find a contest sufficient to require a convention.

Similarly, the law considered in People ex rel. Rudman v. Rini, 64 Ill.2d 321, 1 Ill.Dec. 4, 356 N.E.2d 4 (1976) provided that, upon the death of an office holder, the county central committee of the decedent's political party should appoint a qualified member of the same party to fill out the term. The statute was held unconstitutional because the power to appoint officers is a sovereign power of the state and cannot be delegated...