Keely v. Bd. of Sup'rs of Dubuque Cnty.

• Decision Date: 16 January 1913
• Citation: 139 N.W. 473,158 Iowa 205
• Parties: KEELY v. BOARD OF SUP'RS OF DUBUQUE COUNTY ET AL.
• Court: Iowa Supreme Court

158 Iowa 205

139 N.W. 473

KEELY

v.BOARD OF SUP'RS OF DUBUQUE COUNTY ET AL.

Supreme Court of Iowa.

Jan. 16, 1913.

Appeal from District Court, Dubuque County; John W. Kintzinger, Judge.

Demurrer to the petition praying that a writ of certiorari issue was sustained, and, as plaintiff elected to stand on the ruling, the petition was dismissed. The plaintiff appeals. Affirmed.John R. Waller, of Dubuque, George Cosson, Atty. Gen., and Henry E. Sampson, Sp. Counsel, of Des Moines, for appellant.

P. J. Nelson, Co. Atty., of Dubuque, for appellees.

LADD, J.

[1] Section 430 of the Code Supplement authorizes the board of supervisors to levy a tax to create a fund “for the relief of and to pay the funeral expenses of honorably discharged indigent United States soldiers, sailors, mariners and their indigent wives, widows and minor children.” The next section directs that the fund “shall be disbursed by the soldier's relief commission which shall consist of three persons, two of whom shall be honorably discharged Union soldiers, sailors or mariners to be appointed by said board * * * at the regular meeting in September,” and provides for the qualification and organization of such commissioners. Section 432, Code Supplement, specifies their duties. The petition alleged that plaintiff was a citizen of Iowa and resident of Dubuque county, and an honorably discharged Union soldier, that but one of the two incumbents of the commission for Dubuque county was a Union soldier, and that, notwithstanding this, the board of supervisors appointed George Schaffhauser to fill the vacancy, though he was not a Union soldier, but was an honorably discharged soldier of the Spanish War, and prayed that a writ of certiorari issue to test the validity of such appointment. A few days later E. H. Smith filed a petition of intervention, making like allegations ending with the same prayer. In response to an order to make the petition more specific, plaintiffs alleged the appointment was prejudicial to intervener, who was a candidate for the position. In a second amendment it was alleged that refusing to appoint Smith deprived him of emolument of $75 per annum paid each commissioner for services as such. A demurrer on the grounds (1) that no prejudice resulted to plaintiffs from the action of the board, (2) that plaintiffs had no interest in the controversy, and (3) that Schaffhauser possessed the qualifications for the position exacted by statute was sustained, and it is of this ruling that complaint is made.

Taking up the grounds in the reverse order, it is to be said that what was intended by the statute is perfectly manifest. The soldiers, sailors, and marines who fought in the Civil War of 1860-65 are now referred to, and since that conflict terminated have been referred to as Union soldiers, sailors, or marines, and Confederate soldiers, sailors, and marines; the former having fought to preserve the Union of the states and the latter for the establishment of the so-called confederacy. No argument is required to demonstrate that the Legislature in enacting this statute intended that two citizens known to have been Union soldiers, sailors, or marines of the Civil War and honorably discharged should be incumbents on the soldier's relief commission. This does not exclude the Spanish War veteran as three constitute the commission, but does give preference to the Civil War veteran, probably because a greater number of these will require relief and interment.

[2] Of course, it was the duty of the board of supervisors to obey the law in making the appointment, but the remedy chosen is not available to correct the error in which that body has fallen. In the first place, plaintiffs do not aver that either of them are directly interested, or that either have been, or are likely to be prejudiced by the action of the board. True, the amendment to the petition alleged Smith was an applicant for the place, but the board of supervisors is not limited to those applying from which to make...