Kent v. Polk County Bd. of Sup'rs

• Decision Date: 23 July 1986
• Docket Number: No. 85-1006,85-1006
• Parties: David KENT, Individually, and as Next Friend of 'Holmes,' Appellant, v. POLK COUNTY BOARD OF SUPERVISORS, Polk County Board of Health, and Polk County Board of Health Advisory Committee, Appellees.
• Court: Iowa Supreme Court

Page 220

391 N.W.2d 220

David KENT, Individually, and as Next Friend of 'Holmes,' Appellant, v. POLK COUNTY BOARD OF SUPERVISORS, Polk County Board of Health, and Polk County Board of Health Advisory Committee, Appellees.

No. 85-1006.

Supreme Court of Iowa.

July 23, 1986.

Rehearing Denied Aug. 20, 1986.

Dominic Corsello of Prine & Corsello, Des Moines, for appellant.

Charles R. Montgomery, Asst. Co. Atty., Des Moines, for appellees.

Considered by REYNOLDSON, C.J., and HARRIS, SCHULTZ, CARTER, and WOLLE, JJ.

REYNOLDSON, Chief Justice.

In this case the interests of David Kent, owner of an African lion kept as a pet, collide with a Polk County ordinance regulating the possession of "dangerous and vicious animals." Kent was denied a permit to keep the animal under the provisions of the ordinance. This denial was upheld in a certiorari action brought in district court, and Kent has appealed. We affirm.

Kent acquired the lion, "Holmes," in 1982 when it was three weeks old, and has cared for it at his Polk County home since that time.

In September 1984 the Polk County board of supervisors (board) adopted an "Ordinance Regulating Dangerous and Vicious Animals" (ordinance). This ordinance prohibits persons from owning, sheltering, harboring, or keeping certain species of animals in Polk County, Iowa, with exceptions for those who can qualify for a permit. Permits may be obtained to keep such animals for research, education, or reproduction purposes as those terms are defined in the ordinance and associated rules and regulations, also adopted by the board. The ordinance includes lions on its list of dangerous animals. Therefore, a person is barred from sheltering such an animal unless he or she can come within an exception to the prohibition.

Section 4 of the ordinance provides that the prohibition does not apply to public zoos, humane societies, education or medical institutions, circuses, carnivals, animal hospitals, wildlife rescue organizations, licensed game breeders, and the federal, state, or county governments. Finally, rule 4(H)(1)(b)(4) provides:

Permits are not to be issued to persons who merely wish to possess a "dangerous animal" as a pet. The Director shall, therefore, deny a permit to applicants, who in the Director's ... opinion, have merely contrived a "research," "education," or "reproduction" purpose to justify possession of a "dangerous animal" as a pet. However, such a denial shall not be based upon a mere suspicion alone; there must be articulable evidence to support such an opinion.

(Emphasis added.)

There is no dispute that Kent has kept Holmes as a pet. She is in good health, has been declawed, and has had proper care and veterinary attention. The lion is maintained in a secure holding facility that measures ten by twelve by six feet. Kent has plans, if granted a permit, to build a new facility measuring twenty-four by thirty feet, with an additional, circular, outside steel enclosure.

The ordinance became effective January 1, 1985. On January 17 the Polk County physical planning department (department) served Kent with a "Notice to Remove." Kent was given three days to apply for a permit, or seven days to place Holmes with a person, organization, or entity allowed to have such an animal, or to "euthanise" her in a "humane manner."

January 22, 1985, Kent applied in writing for a permit, asserting he was keeping the lion as a pet. The department denied this application. Its notice of denial was accompanied by an explanatory letter stating that keeping the animal as a pet was not a valid basis for a permit, the holding facility was inadequate, and Kent did not demonstrate a special ability to handle the lion.

Kent appealed to the Polk County board of health advisory committee (committee) as provided by the ordinance. When the matter came on for hearing, Kent presented a written statement and exhibits. After de novo consideration of the entire record, the committee denied Kent's application. The committee reasoned he had failed to state a permissible purpose for issuing a permit and the proposed facility was inadequate.

Kent's petition for writ of certiorari, filed in district court, alleged the committee had exceeded its jurisdiction and acted illegally in denying his application for a permit. Following a trial the district court annulled the writ, holding the committee did have jurisdiction to act and had acted legally. In this appeal Kent raises a number of jurisdictional, constitutional, and substantive issues. We discuss these in the divisions that follow.

I. Did the committee have jurisdiction to act on Kent's application?

Kent first argues the committee was without jurisdiction to hear his appeal. More specifically, he contends his appeal involved a matter of public health, and thus, jurisdiction was vested solely in the county board of health pursuant to Iowa Code section 137.5.

Each county has home rule power to determine its local affairs. Iowa Const. art. III, § 39A. Further, the power of each county is vested in its board of supervisors. Iowa Code § 331.301(2) (1985). Consequently, if not limited by the constitution or inconsistent with state law, a board may

exercise any power and perform any function it deems appropriate to ... preserve and improve the peace, safety, health, welfare, comfort, and convenience of its residents.

Id. § 331.301(1) (emphasis added). The board can exercise this broad power by passing an ordinance. Id. § 331.302(1).

Here, under its home rule power, the board passed an ordinance to ban "dangerous animals." In doing so, it designated the committee as the body vested with jurisdiction to hear appeals under the ordinance. This designation does not violate the statutory mandate in Iowa Code chapter 137, as Kent suggests.

Kent correctly asserts a board of health has the power to enforce state health laws, id. § 137.6(1), and to make rules for the "protection and improvement of the public health," id. § 137.6(2). These rules, however, become effective only upon approval by the county board of supervisors. Id. In addition, this board, in adopting the ordinance and providing for appeal to the committee, did nothing to interfere with the Polk County board of health's ability to propose rules or otherwise carry out its duty. The local board of health has no statutory mandate to hear appeals on the issues involved in this ordinance and there was no encroachment on its jurisdiction.

Moreover, the board clearly has the power to enact ordinances to protect the public "peace, safety, health, welfare, comfort, and convenience." Id. § 331.301(1). Ordinances regulating animals often are enacted pursuant to the county's duty to protect the public, especially the public safety. See 4 C. Antieau, Antieau's Local Government Law: County Law § 35.03 (1986). Finally, the board could delegate the review process to the committee. See Iowa Code § 331.301(2) ("[A] duty of a county shall be performed by or under the direction of the board....") (emphasis added).

Alternatively, Kent argues the committee cannot claim derivative power from the Polk County board of health because the latter body is comprised illegally. No member of the health board was a licensed physician as required by Iowa Code section 137.3.

The committee, however, derives its power to hear appeals from the board, not the health board. Further, the record reflects the board was acting as the health board at all relevant times here, pursuant to legislative authorization. See 1980 Iowa Acts ch. 1001, § 20. The legislature, in authorizing a county board of supervisors to appoint itself as the health board, did not require the board of supervisors to have a physician among its members.

We hold the committee had jurisdiction to hear Kent's appeal.

II. Is the ordinance irreconcilable with Iowa Code section 110.23 and therefore unconstitutional?

Kent asserts the ordinance is irreconcilable with Iowa Code section 110.23 and therefore invalid. See Iowa Code § 331.301(1), (4). As we noted in division I, however, a county, under home rule, has "the power to enact an ordinance on a matter which is also the subject of statute if the ordinance and statute can be harmonized and reconciled." City of Council Bluffs v. Cain, 342 N.W.2d 810, 812 (Iowa 1983); see Green v. City of Cascade, 231 N.W.2d 882, 890 (Iowa 1975).

Iowa Code section 110.23 provides:

Any person may possess not more than two game birds or fur-bearing animals confined as pets without being required to purchase a license as a game breeder, but the person shall not be allowed to increase the person's stock beyond the original number nor shall the person be allowed to kill or sell such stock. Game birds or animals confined as authorized in this section must be obtained from a licensed game breeder or a legal source outside of this state.

(Emphasis added.) Kent asserts this Code section specifically authorizes citizens to keep fur-bearing animals, such as lions, as pets. Consequently, he argues the ordinance providing that "dangerous" animals may not be kept as pets is irreconcilable with state law and cannot stand.

The district court rejected Kent's argument, as we do now. We remain unconvinced that the legislature intended the term "fur-bearing animals" to include African lions. Although generally we give the ordinary meaning to the words in a statute, we will not permit the literal meaning to prevail over or frustrate the legislative intent. Welp v. Iowa Department of Revenue, 333 N.W.2d 481, 483 (Iowa 1983). A workable and practical construction must be given to the language. In re Marriage of Cernetisch, 376 N.W.2d 598, 599 (Iowa 1985). We view statutes dealing with the same subject matter together. Id. at 600.

Iowa Code section 110.23 exempts certain persons possessing fur-bearing animals from a licensing requirement contained in section 110.1. The latter section prohibits a person from possessing a wild animal, "the protection...