Hahn v. Clayton Cnty.

• Decision Date: 23 June 1934
• Docket Number: No. 42554.,42554.
• Citation: 255 N.W. 695,218 Iowa 543
• Parties: HAHN v. CLAYTON COUNTY et al.
• Court: Iowa Supreme Court

218 Iowa 543

255 N.W. 695

HAHN

v.CLAYTON COUNTY et al.

No. 42554.

Supreme Court of Iowa.

June 23, 1934.

Appeal from District Court, Clayton County; T. H. Goheen, Judge.

Writ of certiorari issued by district court of Clayton county, Iowa, to board of supervisors of Clayton county. Upon hearing in district court a decree was entered quashing the writ and dismissing plaintiff's petition. From such decree the plaintiff appeals.

Decree reversed and writ sustained.

Alex Holmes, of Strawberry Point, for appellant.

A. H. Borman, Co. Atty., of Guttenberg, for appellees.

DONEGAN, Justice.

The board of supervisors of Clayton county consists of three members who are so elected that the term of one such member expires on the 2d day of January in each year. In December, 1933, the board as then constituted consisted of Haberichter, Ruegnitz, and Brown. At a meeting held on the 6th day of December, 1933, such board elected E. W. Hahn as county engineer for the year 1934, at a salary of $1,800 per year. Two votes were cast in favor of such action by Haberichter and Ruegnitz, and one vote against such action was cast by Brown. On the 2d day of January, 1934, said Haberichter retired as a member of the board, and Charles Fay, who had been elected to succeed him at the November election in 1932, duly qualified and became a member of said board. The board as thus constituted was duly organized, and, at a meeting held on the 20th day of January, 1934, a motion was passed disapproving and annulling the action of the board at its December session in appointing E. W. Hahn as county engineer for the year 1934, and discharging said Hahn, such discharge to be effective at the end of the month of January, for the reason that said board as then constituted was without power or authority to make such appointment binding on the board for the year 1934 as now constituted. Two votes were cast in favor of said motion by Brown and Fay, and one vote was cast against said motion by Ruegnitz. Following this action the new board proceeded to appoint another person as county engineer for the balance of the year 1934.

On the 30th day of January, 1934, said Hahn filed his petition in this case in the district court of Clayton county, alleging his election, his attempted discharge by the board as now constituted, and he was an ex-service man and an honorably discharged soldier of the war with Germany, that the said board had no power or authority to remove or discharge him from said office, and asking that a writ of certiorari issue and that the said proceedings of said board in attempting to remove and discharge him be annulled, set aside, and held for naught. A writ of certiorari issued, as prayed, and upon hearing in the district court such court found in favor of the defendant board and entered a decree dismissing the plaintiff's petition and quashing the writ of certiorari. From such decree the plaintiff appeals.

The statute covering the appointment of county engineers, which was in effect in December, 1933, is section 4644-c19 of the Code of 1931, and is as follows: “4644-c19. * * * The board of supervisors shall employ one or more registered civil engineers who shall be known as county engineers. The board shall fix their term of employment which shall not exceed three years, but the tenure of office may be terminated at any time by the board.”

The statutes which appellant claims deprive the appellee board of the right to discharge him are contained in what is known as the Soldiers' Preference Law. The first section of said law, section 1159, Code of 1931, provides, in substance, that in every public department and upon all public works in the state, and of counties, cities, and certain other public and quasi public corporations, honorably discharged soldiers, including those who took part in the war with Germany, shall be entitled to preference in appointment, employment, and promotion over other applicants of no greater qualifications.

Section 1163, of the Code of 1931, contains the provisions of said law with regard to removal, and is as follows: “1163. * * * No person holding a public position by appointment or employment, and belonging to any of the classes of persons to whom a preference is herein granted, shall be removed from such position or employment except for incompetency or misconduct shown after a hearing, upon due notice, upon stated charges, and with the right of such employee or appointee to a review by a writ of certiorari.”

Appellant contends that his appointment by the board at its meeting in December, 1933, was a valid appointment, and that, he being an honorably discharged soldier in the war with Germany, the action of said board in attempting to remove him is invalid and void under the provisions of the statute above quoted. Appellees, on the other hand, contend that the appointment which was attempted to be made by the board at its December meeting in 1933 was illegal, and that, even if such appointment had been legal, the board is expressly authorized by section 4644-c19 to terminate the tenure of office of the county engineer at any time. It is apparent that two questions are therefore presented for our determination; first, Was the appointment of the appellant made by the board of supervisors at its December meeting in 1933 a valid appointment, and, second, If such appointment was valid, did the board have the power to remove the appellant and terminate his tenure of office?

[1] I. Appellees contend that, notwithstanding the provision of section 4644-c19 giving the board the power to fix the term of employment of the county engineer, which shall not exceed three years, the board as constituted in 1933 had no power to make an appointment which would be binding on the new board as constituted during the year 1934. The provisions of the Code of 1931, in reference to county engineers, are found in sections 4644-c19 to 4644-c23, Code of 1931, and were originally enacted as a part of chapter 20 of the Acts of the 43d General Assembly. These statutes provide not only for the appointment and removal of county engineers, but also contain provisions to the effect that such engineers shall work under the directions of the board, shall give bond for the performance of their duties, shall file itemized and verified accounts with the board, stating the time, place, and character of work done, and vouchers for any expense incurred, and that all construction and maintenance work shall be performed under the direction and immediate supervision of such engineers. Appellees argue that these provisions of the statutes, taken in connection with the positive provision of section 4644-c19, authorizing the board to terminate the tenure of office of such engineer, indicate that it was the intention of the Legislature that the board to which such engineer should be subject, and which was responsible for the carrying out of all construction and maintenance work by him, should have the right to appoint such engineer. In other words, it is appellees' contention that the board of 1934 should not have foisted upon it and be made responsible for a county engineer by the deciding vote of the retiring member of the 1933 board. In support of their contention appellees cite Burkhead v. Independent District, 107 Iowa, 29, 77 N. W. 491, 492, and Independent School District of Liberty v. Pennington, 181 Iowa, 933, 165 N. W. 209, 210. In Burkhead v. Independent District a school board agreed to employ a teacher for a period of five years, and the question involved was whether the board had the power to make such a contract. The opinion states that the statutes then in effect were silent as to the duration of such contract, and that, if a limitation existed as to the time a teacher might be engaged, it must be inferred from other provisions of the law or because of public policy. The opinion then proceeds to show that other provisions of the law indicate an intention that the term of such employment shall not exceed one year, and states: “We think that an examination of the statutes leads to the inevitable conclusion that the legislature intended such contracts to be limited in duration to the school year as determined by the board of directors. If not so limited, then the directors might employ teachers for any number of years, tie up the hands of their successors in office, and wrest from the control of the people the schools which they are required to support. The spirit of these statutes is repugnant to the idea that one board of directors, by contract wholly to be performed in the future, can devest future boards of the power to select teachers, and make contracts therefor, and indirectly take from the people all the advantages to be derived from annual elections. This conclusion is strengthened by the universal practice of employing a teacher for a single school year.”

In Independent School District v. Pennington, the outgoing school board of a rural independent district attempted to employ a teacher for the school year which would be wholly within the term of office of the members of the new board, and the court held that, although a statute then in effect permitted a contract for a longer period than one year in certain districts, it had no application to the rural independent school district, and approved and followed the holding in the Burkhead Case.

It will be noted, however, that, in the Burkhead Case, while this court found that the board could not make a contract for more than one year, we stated: “The board of directors represents the district,-from a legal standpoint, is the district. It is a continuous body. The officers change, but the corporation continues unchanged. The contracts are of the corporation, and not of the members of the board individually. It is not essential, then, that contracts be limited to the terms of office of the individuals making up the board.”

And in Independent School District v. Pennington, ...