Lehan v. Greigg

• Decision Date: 04 May 1965
• Docket Number: No. 51630,51630
• Citation: 135 N.W.2d 80,257 Iowa 823
• Parties: Alma LEHAN et al., Appellees, v. Dean S. L. GREIGG, Dr. James E. Reeder, Jr., Mayor George Young, J. L. Torgerson and Marie White, as Members of the City Council of the City of Sioux City, Iowa, and the City of Sioux City, Iowa, Appellants.
• Court: Iowa Supreme Court

Page 80

135 N.W.2d 80

257 Iowa 823

Alma LEHAN et al., Appellees, v. Dean S. L. GREIGG, Dr. James E. Reeder, Jr., Mayor George Young, J. L. Torgerson and Marie White, as Members of the City Council of the City of Sioux City, Iowa, and the City of Sioux City, Iowa, Appellants.

No. 51630.

Supreme Court of Iowa.

May 4, 1965.

Neil R. Mc.Cluhan, Sioux City, for appellants.

William A. Shuminsky, Sioux City, for appellees.

STUART, Justice.

This is a certiorari proceeding to determine the validity of the action of the City Council of Sioux City, in granting a Class B permit to Raymond J. Cabana, who had been convicted of indictable misdemeanors and violating the intoxicating liquor laws of the State of Iowa. The trial court annulled the action of the council relating to the issuance of the beer permit, ordered further proceedings and taxed the costs against four members of the council as individuals. They appeal.

On October 28, 1963, Mr. Cabana filed an application under oath for a class B beer permit with the city clerk of Sioux City. The following question and answer appear in said application:

'17. Has applicant been convicted of a felony, indictable misdemeanor, or violation of the beer or intoxicating liquor laws of the State of Iowa? No.'

It is stipulated the answer is false and untrue. Attached to the application was the certificate of the Sioux City Chief of Police in which he listed two indictable misdemeanors as 'additional reasons or grounds to my knowledge for refusing to issue a beer permit to the within applicant'.

An attached certificate from the county attorney's office showed the following convictions: 2-25-43 maintaining a liquor nuisance; 2-25-43 illegal possession of lottery tickets; 5-5-49 illegal possession of lottery tickets; 1-11-52 maintaining a liquor nuisance. The last two convictions are the same ones referred to by the chief of police.

On November 12, 1963 defendants, Greigg, Reeder, Young and Torgeson acting as the city council of Sioux City granted the permit. They did not read the application or endorsements. They made inquiry of the city attorney's office and were informed Mr. Cabana was eligible.

On November 26, 1963 plaintiffs submitted a citizen's complaint pursuant to the provisions of section 124.40 of the Code, I.C.A. to a regular meeting of the city council alleging the permit was illegally issued because the applicant was not a person of good moral character and because his application under oath contained false statements, and requesting the council to set a time and place of hearing. Action was deferred until a full council was present.

Full council was present on December 2, 1963 when the complaint was discussed. Councilwoman Marie White, who was not present when the permit was issued, moved that a hearing be set for December 9, 1963, which motion died for want of a second and no other action was taken. This action was filed December 13, 1963.

Just prior to a hearing on the merits on May 6, 1964, Mr. Cabana surrended the permit in question. On May 11, 1964, the city council passed a resolution cancelling it and refunding $150 to Mr. Cabana. A supplemental writ and hearing followed this action of the council.

I. Defendants argue certiorari will not lie because the act of issuing the beer permit was legislative, not judicial and was discretionary with the council. R.C.P. 306, 58 I.C.A., provides:

'A writ of certiorari shall only be granted when specifically authorized by statute; or where an inferior tribunal, board or officer, exercising judicial functions, is alleged to have exceeded its * * * proper jurisdiction or otherwise acted allegally.'

It is the nature of the act performed which determines whether it is legislative or judicial. Gates v. City of Bloomfield, 243 Iowa 1, 50 N.W.2d 578. We have held that certiorari will lie if the act is quasi judicial in character. Massey v. City Council of City of Des Moines, 239 Iowa 527, 530, 31 N.W.2d 875; Anderson v. Hadley, 245 Iowa 550, 561, 63 N.W.2d 234, 240.

Section 124.5 Code of Iowa, I.C.A. gives city councils the power to issue beer permits. Under section 124.9 the applicant must establish, among other things, that 'he is a person of good moral character'. Section 124.6 restricts the issuance of the permits to citizens of Iowa 'who are of good moral character and repute'. The city council exercises its discretion and judgment in determining if the applicant meets these qualifications and therefore performs a quasi judicial function with respect to beer permits. However, it is not completely free to set its own standards and use its own judgment in determining 'persons of good moral character'. Section 124.2(6) specifically excludes from this term, 'any person * * * who * * * has been found guilty of violating any of the provisions of the beer act or any of the intoxicating liquor laws of the state or who has been convicted of a felony or an indictable misdemeanor.'

Thus the city council in granting a permit to Mr. Cabana, who admittedly had been convicted of indictable misdemeanors and violated the intoxicating liquor laws, acted contrary to the specific terms of the statute.

In Smith v. Powell, 55 Iowa 215, 7 N.W. 602, a local school board directed its secretary not to certify for collection a tax voted by the electors. We said:

'It was the duty of the defendants to have 'caused the secretary' to certify said tax to the board of supervisors. Instead of so doing they directed the secretary not to do so. In so doing they exceeded their jurisdiction and did an illegal act. * * *'

'It is also insisted the action of the defendants was immaterial and not judicial, and therefore certiorari is not the proper remedy. It seems to us, to do the opposite of that which is enjoined as a duty by statute, requires the exercise of judicial functions of no common order.'

In Darling v. Boesch, 67 Iowa 702, 25 N.W. 887, it was conceded certiorari would not lie to review a finding of fact of good moral character in the issuance of a liquor permit, but we held it would lie to review the action of the board of supervisors when the permit was issued without the filing of a certificate of electors required by statute. Here, the council would have discretion in determining persons of good moral character within the statutory limitations, but they could not find, as a fact, a person to be of good moral character contrary to the statutory definition.

In Massey v. City Council of City of Des Moines, 239 Iowa 527, 535, 31 N.W.2d 875, we held the city council in passing a resolution transferring to the chief of police certain authority vested by statute in the superintendent of public safety exercised a quasi judicial function, exceeded its authority and acted illegally. We sustained the writ of certiorari. See also Anderson v. Hadley, 245 Iowa 550, 560, 63 N.W.2d 234, 240.

Appellants cite Minnesota authorities which support their contention that the issuance of permits is discretionary in character. In most instances this is true. Madsen v. Town of Oakland, 219 Iowa 216 257 N.W. 549; Curtis v. DeGood, 238 Iowa 877, 29 N.W.2d 225. However in none of these cases was a permit granted to a person specifically disqualified by statute as in the instant case.

II. Defendants claim plaintiffs had not exhausted the administrative remedies and therefore the courts had no jurisdiction. They rely on section 124.4 of the Code, I.C.A. which says the 'state permit board may review' action of the city council on hearings for revocation of a permit or order a hearing where the council has failed to act. It also provides '[l]ike hearings may also be had' in cases where 'at least ten taxpayers' present a petition to the city council and it 'neglects or refuses to have such hearing.'

Defendants claim no petition was made to the state for a hearing and therefore the administrative remedies were not exhausted.

Plaintiffs claim section 124.40 under which they have proceeded offers alternative remedies. It states 'In addition to all other provisions of this chapter for the revocation of class 'B' licenses, it is further provided that ten or more citizens * * * may join in filing' a complaint with the council. It sets out the duties of the council after such filing, including the duty to give notice and hold a hearing and provides for an appeal to the district court from the decision of the council. There is no provision for action in the event the council fails to hold a hearing.

The statement that section 124.40 is an 'additional' remedy indicates it is an alternative procedure to that contemplated by section 124.4. This is supported by the fact that section 124.40 provides for a petition signed by 'ten citizens' and section 124.4 refers to 'ten taxpayers'. It is self evident that these terms are not synonymous. The appeal in 124.4 is to the state board. The appeal in 124.40 is to the district court.

We believe there is a further reason for holding the courts have jurisdiction. Here plaintiffs had nothing to appeal from under section 124.40 because the council did not hold a hearing as provided by statute. They did not go to the state board as provided in section 124.4 but chose to start a separate action in certiorari. This is proper even under section 124.4, because they are seeking to test the jurisdiction and legality of the council's action. They do not need or want a review of findings of fact.

R.C.P. 308 provides: 'The writ shall not be denied or annulled because plaintiff has another plain, speedy or adequate remedy; but the relief by way of certiorari shall be strictly limited to questions of jurisdiction or illegality of the acts complained of * * *.'

In Hitchcock v. Department of Public Safety, 250 Iowa 1016, 1019, 98 N.W.2d 1, plaintiff brought action in certiorari alleging defendant acted illegally and exceeded its jurisdiction in suspending his drivers license. Defendant urged certiorari would not lie since plaintiff...