Hansen v. Henderson, 48217

• Decision Date: 16 December 1952
• Docket Number: No. 48217,48217
• Citation: 56 N.W.2d 59,244 Iowa 650
• Parties: HANSEN et al., Sioux City Board of Waterworks Trustees, v. HENDERSON, Mayor of Sioux City, et al.
• Court: Iowa Supreme Court

Page 59

56 N.W.2d 59

244 Iowa 650

HANSEN et al., Sioux City Board of Waterworks Trustees, v. HENDERSON, Mayor of Sioux City, et al.

No. 48217.

Supreme Court of Iowa.

Dec. 16, 1952.

Rehearing Denied March 18, 1953.

Wm. A. Shuminsky and Thos. J. Griffin, of Sioux City, and Clarence M. Updegraff, of Iowa City, for appellants.

M. E. Rawlings and Sifford & Wadden, of Sioux City, for appellees.

BLISS, Justice.

The evidence, mostly documentary, is in the record by stipulation, subject to objections. The determination of the questions on appeal is largely a matter of statutory construction, and there is debatable basis for the opposing contentions. The chief contentions are whether the Sioux City Board of Waterworks Trustees was validly established and the plaintiffs, as members thereof, are entitled to their offices. Plaintiffs assert that they are, and the defendants assert the contrary.

There is little, if any, dispute as to the material facts. Sioux City acquired its waterworks plant and system in July, 1885 from private owners who had previously operated it. It was a city of the first class at that time, having a population of between 15,000 and 16,000, and has continued in that class. Cities of the first class have a population of fifteen thousand or over. Cities of the second class have a population of two thousand, but not exceeding fifteen thousand. Every municipal corporation having a population of less than two thousand is a town. Sec. 508, Code 1873 sec. 638, Code 1897, sec. 363.1, Code 1950, I.C.A. At that time there was no statutory provision for municipal boards of waterworks trustees, and the city, in its proprietary and private capacity, operated the system by its mayor, council and other employes. In 1898 a Board of Waterworks Trustees operated the plant until the statutory provisions under which the Board was established were declared unconstitutional, State ex rel. White v. Barker, 116 Iowa 96, 89 N.W. 204, 57 L.R.A. 244, 93 Am.St.Rep. 222. The city council had been operating the waterworks for a period just prior to January 1, 1952, at which time the city had a population in excess of 85,000.

Pursuant to the provisions of Chap. 399, Code 1950, I.C.A., the city council, on December 14, 1951, established the Board of Waterworks Trustees by adopting Ordinance No. Q-37,783, signed by the mayor at that time, Dan J. Conley, attested by the city clerk, and thereafter published. On December 17, 1951, the council adopted Resolution No. Q-37,922, signed by said mayor and attested by the clerk, which recited that upon nomination by the mayor, the plaintiffs were approved and confirmed as members of the first Board of Waterworks Trustees, to serve from the first secular day of January, 1952 for the following terms, to wit: Frank Nero until the second year after the effective date of his appointment; Lawrence Baron and Chris Hansen until the first Monday in April of the fourth year after date of appointment; and S. F. Cusack and George Graham until the first Monday in April of the sixth year after date of appointment. Under the ordinance establishing the Board its members were required to have specified qualifications, to submit to certain conditions and restrictions, to take their official oaths, to give individual bonds in the sum of $5000, and they were to receive no compensation for their services.

Each member qualified on December 21, 1951, and on December 28, 1951 the Council passed Resolution No. Q-37,977 ratifying and approving their appointment. On January 2, 1952, the Board met with all members present, organized and chose Chris Hansen, as permanent chairman of the Board, and passed a number of resolutions. The Board met again on January 10, 1952, and among other matters of official business, approved the waterworks pay roll for the first half of January, 1952 and ordered it paid. The Board met again on January 17, 1952 at which time claims were approved and other business was done. Official meetings of the Board were held on January 22 and 24, February 1st, 7th, 11th, 15th, 19th, 25th, 26th, 29th, March 6th and 12th. All of these meetings and the business there conducted were had in the taking over, management and operation of the waterworks system of Sioux City.

On December 21, 1951, P. M. Mulford, a resident and taxpayer of Sioux City, brought suit against the mayor, commissioners, and the members of the Board of Waterworks Trustees, being Cause No. 76,732 Equity, in the Woodbury County District Court, praying for a temporary writ of injunction restraining the city council from establishing the Board, and the members thereof from assuming the duties imposed upon them. On January 15, 1952 a decree by Judge Ralph C. Prichard was entered in said cause denying the writ and holding that the Board was lawfully established and its members were legally appointed.

On February 8, 1952, the city council adopted Resolution No. Q-38,272, revoking the prior resolution appointing the members of the Board, and declaring the possession of all the assets of the waterworks system and its operation and management were in the city council; dissolving the Board; directing all city officers and employes to neither recognize the existence of the Board nor to obey its orders; denying the Board any funds or materials for operating the waterworks, and declaring that any city officer or employe who violated the provisions of the resolution should be deemed guilty of misconduct warranting his suspension or dismissal.

On February 8, 1952, the city council introduced and passed on the first and second reading Ordinance No. Q-38,273, purportedly abolishing its prior ordinance establishing the Board.

On February 14, 1952, the plaintiffs in this suit filed their petition alleging the various proceedings of the council herein noted and other matters, praying that a temporary injunction be issued, without notice, enjoining defendants from pursuing their course of conduct in obstructing the plaintiffs in the discharge of their duties, and from taking any action to make effective Ordinance No. Q-38,273, and further praying that Resolution No. Q-38,272 be declared of no validity or force, and that upon final hearing the injunction be made permanent. On the same day, February 14, 1952, the District Court, with Judge L. B. Forsling presiding, found the allegations of the petition to be true, and that defendants were about to do acts violating plaintiffs' right respecting the subject of the action and tending to make the judgment ineffectual, and found that the issuance of the writ of temporary injunction would not stop the general and ordinary business of Sioux City. The writ was granted and ordered issued, and was issued on February 14, 1951, directed to the defendants herein, and ordering and enjoining them and all persons working under them, until further order of the Court in the proceeding from taking or attempting to take any action interfering with plaintiffs, as members of the Board in the discharge of their duties; they were particularly enjoined from ordering or permitting any employes of Sioux City or of its waterworks department from disobeying proper orders of plaintiffs, or withholding from plaintiffs, as trustees, the possession of any or all assets, monies, funds, real, personal, and other, property of said department; they were further enjoined from taking or attempting to take any action to pass, approve or publish the purported Ordinance No. Q-38,273, or from in any manner putting into force and effect Resolution No. Q-38,272.

Notwithstanding the injunction, the city council on February 15, 1952, placed upon its third reading, passed and approved said Ordinance No. Q-38,273, therein stating: 'Be it ordained * * *:

'Section 1, Ordinance No. Q-37,783, which Ordinance established the Board of Trustees for the Sioux City Waterworks, is hereby entirely repealed. Ralph Henderson, Mayor.'

Dan J. Conley had resigned as mayor of Sioux City, effective January 2, 1952, and Ralph Henderson succeeded him in the office on January 4, 1952.

Plaintiffs alleged in their petition that the Board of Waterworks Trustees was a statutory board created by the Legislature of Iowa, under the provisions of Chap. 399, Code 1950, I.C.A., with the power of appointment, only, by the city council, on the nomination of the mayor, as provided in said chapter; that there was no provision in Chap. 399, or otherwise in the statutes, vesting in the city council any power or right to abolish said Board once it has been created; and that in the alternative, if it be considered that the power to create the Board, and to appoint its members, was discretionary in the city council, which plaintiffs denied, yet, once the Board had been created and appointed and had taken office, as by law provided, and as the Sioux City Board had done, that action was a finality, and could not be abrogated, annulled, nor changed, by the city council.

On February 26, 1952, P. M. Mulford, plaintiff in said equity cause No. 76,732 filed a dismissal of the suit without prejudice.

Defendants, other than Drew H. Fletcher, filed answer, March 12, 1952, in which they admitted the adoption of the ordinances and resolutions mentioned herein; they denied that there was or is a validly created Sioux City Board of Waterworks Trustees, or that the laintiffs were or are legally appointed or qualified members of any such Board, or that they validly assumed any duties, officially or individually, in connection with the operation of the waterworks; they averred that if plaintiffs ever held the office of trustees, they were removed therefrom and their terms expired by Resolution No. Q-38,272, adopted February 8, 1952, six days before this action was commenced, and that they had no right to maintain it; defendants admitted that Chap. 399, Code 1950, I.C.A. made provision for a Board of Waterworks Trustees, but denied that it had any application to Sioux City, or that...