Kasparek v. Johnson County Bd. of Health

• Decision Date: 20 February 1980
• Docket Number: No. 62420,62420
• Parties: 10 Envtl. L. Rep. 20,539 Donald K. KASPAREK and Rose Marie Kasparek, for Themselves and for Their Grantees and Assigns, Appellees, v. The JOHNSON COUNTY BOARD OF HEALTH, Appellant, Evelyn C. Weeber, Chairperson of the Johnson County Board of Health, Lee Dameron, Director, and Dr. Charles A. DeProsse, Mari S. Greb, Pauline McAreavy and Orval Yoder, Members of the Board, Johnson County, Iowa, Lorada Cilek, Chairperson of the Board of Supervisors of Johnson County, Iowa, Donald Sehr and Harold M. Donnelly, Members of the Board, Defendants, James R. Bulechek, Jr., Paul Carney, James Casterline, Milo Naxera, United State Bank, and Lincoln A. Zarub, Intervenors.
• Court: Iowa Supreme Court

Page 511

288 N.W.2d 511

10 Envtl. L. Rep. 20,539

Donald K. KASPAREK and Rose Marie Kasparek, for Themselves and for Their Grantees and Assigns, Appellees, v. The JOHNSON COUNTY BOARD OF HEALTH, Appellant Evelyn C. Weeber, Chairperson of the Johnson County Board of Health, Lee Dameron, Director, and Dr. Charles A. DeProsse, Mari S. Greb, Pauline McAreavy and Orval Yoder, Members of the Board, Johnson County, Iowa, Lorada Cilek, Chairperson of the Board of Supervisors of Johnson County, Iowa, Donald Sehr and Harold M. Donnelly, Members of the Board, Defendants James R. Bulechek, Jr., Paul Carney, James Casterline, Milo Naxera, United State Bank, and Lincoln A. Zarub, Intervenors.

No. 62420.

Supreme Court of Iowa.

Feb. 20, 1980.

J. Patrick White, First Asst. Johnson County Atty., for appellant.

Edward F. Rate, Iowa City, and Mitchell E. Turner, Cedar Rapids, for appellees.

William H. Bartley, Iowa City, for intervenors.

Considered en banc.

REYNOLDSON, Chief Justice.

Plaintiffs and intervenors are developers of subdivisions and owners of lots in the Lake Macbride watershed in Johnson County. By declaratory judgment action brought against Johnson County Board of Health (Board) and Johnson County board of supervisors they sought to nullify the retroactive aspect of a regulation adopted by the Board and approved by the board of supervisors as it applied to their pre-platted subdivisions. This regulation prescribed a minimum five-acre tract as a prerequisite for a permit to install a septic tank disposal system. A grandfather clause protected all previously platted and approved subdivisions in "areas of the County lying outside the Lake Macbride water shed." Following trial, district court held this provision was "unconstitutional and void and ineffective" against plaintiffs and intervenors. The Board (but not the board of supervisors) appealed. We affirm.

Plaintiffs filed a motion to dismiss the appeal, contending (1) the Board had no authority to appeal independently of the board of supervisors, and (2) by payment of district court costs the Board "acquiesced in and confirmed" the district court judgment and is now estopped from prosecuting this appeal. We ordered this motion submitted with the appeal and now overrule it in division I, below.

The Board asserts that plaintiffs and intervenors have not carried their burden to show the controverted regulation was unconstitutional as to them, and in any event they are barred by laches from attacking the validity of the regulation.

Plaintiffs argue the points relied on in their motion and defensively contend they were not guilty of laches. They assert district court did not err in finding the challenged portion of the health regulation was unconstitutional as violative of due process.

I. Motion to dismiss appeal.

A. Although in this litigation plaintiffs named as defendants both the Board and the board of supervisors, they now contend the former has no authority independently to pursue this appeal. They assert the Board as a mere "agency or instrumentality" of the county lacks the capacity to sue and be sued, citing among other decisions Des Moines Park Board v. City of Des Moines, 228 Iowa 904, 290 N.W. 680 (1940), and Hanson v. City of Cresco, 132 Iowa 533, 109 N.W. 1109 (1906). Plaintiffs point out the Board is not incorporated by statute or otherwise, has no express power to sue or be sued, and cannot promulgate health regulations without the approval of the board of supervisors. The Board's members are not elected.

Nevertheless, although the issue is close, we hold the Board does have authority to bring this appeal. Pursuant to section 137.6(2), The Code, it has a basic power to

(m)ake and enforce such reasonable rules and regulations not inconsistent with law or with the rules of the state board as may be necessary for the protection and improvement of the public health.

Although the rules and regulations of the Board must be approved by the county board of supervisors, § 137.6(2)(a), there is no statutory requirement the Board must obtain the supervisors' approval in its enforcement function. See Local Board of Health v. Wood, 243 N.W.2d 862 (Iowa 1976). "In determining the validity of the acts of such boards (of health and like commissions) . . . a liberal construction (of implementing statutes) is justified, in view of the public good to be accomplished." Walker v. Sears, 245 Iowa 262, 266, 61 N.W.2d 729, 731 (1953), Quoting from Hengehold v. City of Covington, 108 Ky. 752, 756, 57 S.W. 495, 496 (1900).

It would be an anomaly if those in violation of a local health board's regulations could avoid enforcement by a preempting declaratory judgment action in which the agency charged with enforcement could not be a party. It would be more anomalous to hold that where the local board of health was made a party, it could not defend its regulation by appeal.

Section 137.5 grants the county board of health "jurisdiction over public health matters within the county." It certainly is conceivable that a board operating within such jurisdiction might find occasion to exercise quasi-judicial power. In such event, its action should be subject to review as a defendant in a certiorari proceeding. See Cedar Rapids Human Rights Commission v. Cedar Rapids Community School District, 222 N.W.2d 391, 397-401 (Iowa 1974).

The authorities plaintiffs rely on are rooted in the prior doctrine that counties, municipalities and their local agencies have only such powers as are expressly granted by the legislature. This principle is no longer valid following adoption of the home rule amendments. Iowa Const. art. III, § 38A (as added by amend. 25 in 1968) (municipal home rule); Iowa Const. art. III, § 39A (as added by amend. 37 in 1978) (counties home rule). See Cedar Rapids Human Rights Commission, 222 N.W.2d at 398-99.

Plaintiffs' myopic concentration on the Board's chapter 137 powers ignores its extensive authority under other statutory provisions. See, e. g., §§ 139.3 (authority to impose and enforce isolation and quarantine restrictions), 139.9(7) (immunization of children), 140.8 (examination of persons reasonably suspected of having venereal disease) 170A.4 (local health board by agreement between governmental subdivision and secretary of agriculture shall "license, inspect and otherwise enforce" the Iowa food service sanitation code), 170B.3 (under similar circumstances, license, inspect and otherwise enforce the Iowa hotel sanitation code), 170B.17 (violations of Iowa hotel sanitation code may be restrained by injunction), 191A.14 (local health board by agreement between governmental subdivision and secretary of agriculture shall enforce the food and vending machine laws), 351.36 (enforce statutory provisions relating to vaccination and impoundment of dogs), 351.39 (order owner of animal suspected of rabies which has bitten a person to confine it, and on failure to do so to apprehend and confine the animal), 351.40 (on belief rabies to be epidemic in its jurisdiction, to declare quarantine), 455B.77 (executive director of solid waste disposal commission of the department of environmental quality may delegate administrative duties of the department to local boards of health). These duties and responsibilities should cloak this Board with sufficient independent stature to pursue an appeal from an adverse decision in which it was a named defendant.

We find support for our holding in Local Board of Health v. Wood, 243 N.W.2d 862; Cedar Rapids Human Rights Commission, 222 N.W.2d 391; Board of Adjustment v. Ruble, 193 N.W.2d 497 (Iowa 1972). See Police Pension & Relief Board v. Goldman, 486 P.2d 469, 471 (Colo.App.1971); Cunningham v. Leimkuehler, 276 S.W.2d 633 (Mo.App.1955); Board of Adjustment v. Stovall, 147 Tex. 366, 216 S.W.2d 171 (1949).

We are not concerned in this appeal with the question whether the Board could maintain litigation against the County. Compare Board of Park Commissioners v. City of Marshalltown, 244 Iowa 844, 58 N.W.2d 394 (1953) With Des Moines Park Board v. City of Des Moines, 228 Iowa 904, 290 N.W. 680. See also Southeast Warren Community School District v. Department of Public Instruction, 285 N.W.2d 173 (Iowa 1979); Iowa Department of Revenue v. Iowa State Board of Tax Review, 267 N.W.2d 675 (Iowa 1978). It is enough for the purposes of this appeal to hold that the Board's affirmative power to enforce its rules and regulations carries with it a concomitant power to defend them and resist their nullification in court.

B. Plaintiffs' assertion that this appeal must be dismissed because the district court costs were paid, in absence of a showing of actual intent to abandon the appeal, is without merit. See Vermeer v. Sneller, 190 N.W.2d 389, 395-96 (Iowa 1971). Accord, Millsap v. Cedar Rapids Civil Service Commission, 249 N.W.2d 679, 683 (Iowa 1977).

The motion to dismiss this appeal is overruled.

II. Constitutionality of the health regulation provision as to these plaintiffs and intervenors.

This declaratory judgment proceeding was brought and tried in equity. See Northern Natural Gas Co. v. Forst, 205 N.W.2d 692, 694 (Iowa 1973); Iowa R.Civ.P. 261-269. Our review is de novo; we give weight to trial court's fact findings but are not bound by them. Iowa R.App.P. 14(f)(7).

We are not examining the validity of the challenged regulation to the extent it creates a separate classification for the Lake Macbride watershed generally. Our review is limited to the reasonableness of the regulation as applied to these plaintiffs and intervenors. "(A)n ordinance may be valid in its general aspect and at the same time be clearly arbitrary and unreasonable as applied to a particular state of facts." Keller v. City of Council Bluffs, 246 Iowa 202, 209, 66 N.W.2d 113, 117 (1954). See also Nectow v. City of Cambridge, 277 U.S. 183, 187-89, 48 S.Ct. 447, 448, 72 L.Ed. 842, 844-45 (1928) (inclusion within zoning ordinance of tract of land not...