Massey v. City Council of City of Des Moines

• Decision Date: 06 April 1948
• Docket Number: 47188.
• Citation: 31 N.W.2d 875,239 Iowa 527
• Parties: MASSEY v. CITY COUNCIL OF CITY OF DES MOINES et al.
• Court: Iowa Supreme Court

31 N.W.2d 875

239 Iowa 527

MASSEY v. CITY COUNCIL OF CITY OF DES MOINES et al.

No. 47188.

Supreme Court of Iowa

April 6, 1948

[Copyrighted Material Omitted]

F T. Van Liew, City Sol., Paul Hewitt and Harvey Bogenrief Asst. City Sols., and Hextell & Beving, all of Des Moines, for appellants.

J. R. McManus, of Des Moines, for appellee.

GARFIELD Justice.

The city of Des Moines has the commission form of government as provided by Code chapter 416 (unless otherwise stated all Code references are to Code of 1946). In the spring of 1946 plaintiff Massey was elected and duly qualified as superintendent of public safety. It became his duty, with the approval of the city council, to appoint the chief of police. Code section 365.13. No such chief having been appointed, on January 17, 1947, on motion of the mayor, the council (including plaintiff) unanimously adopted this resolution known as Roll Call 2983:

'Be it resolved, by the City Council of the City of Des Moines, Iowa:

'That John A. Brophy be and he is hereby appointed Chief of Police effective immediately; and

'Be it further resolved, that in addition to all other powers and authority conferred by law or ordinance, the Chief of Police shall have power and authority, without the approval of any member of the City Council, to assign the personnel of the police department, as he deems necessary, to carry out the functions of that department. He shall have the sole authority to prescribe rules and regulations for the conduct and management of the police department, it being understood that the chief shall be accountable solely to the city council. It is further understood that the chief shall have authority to hold any police officer responsible for his assignments and report to the council infractions of the rules, or failure or refusal to obey orders.'

On the same day (January 17) the oath of office as chief of police was orally administered to Brophy who apparently then entered upon the performance of his duties. His written reiteration of the oath was filed on January 20 and three days later his bond, on plaintiff's motion, was unanimously approved and ordered filed. On January 20 plaintiff asked permission to change his vote on Roll Call 2983 from yea to nay. There were no objections and it was resolved the vote on Roll Call 2983 show the negative vote of plaintiff and the affirmative votes of the other four councilmen. A motion by the mayor to rescind Roll Call 2983 lost by the same four to one vote.

On July 16, 1947, plaintiff commenced action in the district court in certiorari against the city council and city clerk to test the legality of Roll Call 2983. The right to certiorari would have been barred in one more day. Rule 319 (all references to Rules are to Rules of Civil Procedure). Plaintiff's challenge to the resolution is based on the claim it conflicts with certain ordinances and statutes. Defendants filed answer to plaintiff's petition and on August 11, 1947, the cause was submitted to the trial court 'upon the basis of the pleadings and the return.' Defendants made a socalled offer of proof to which we will refer later. On August 12 the court made its written findings of fact and conclusions of law, followed on August 13 by judgment, sustaining the writ and annulling Roll Call 2983 as in excess of the council's jurisdiction and illegal.

I. Defendants contended unsuccessfully in the trial court and maintain here certiorari will not lie because they say they were not exercising a judicial function in the passage of Roll Call 2983. We are not inclined to reverse the judgment on this ground. Rule 306 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, or his proper jurisdiction or otherwise acted illegally.'

It may be conceded that in the passage of the resolution defendants were not exercising a judicial function in the strict or technical sense in which the term is used when applied to courts. But that is not necessary. The authorities are substantially agreed and we have recognized that certiorari will lie if the act is of a quasi-judicial character. See for example McKeown v. Moore, 303 Ill 448, 135 N.E. 747, 749; Jordan v. Hayne, 36 Iowa 9, 15. It is difficult if not impossible to define precisely what are judicial or quasi-judicial acts. 14 C.J.S., Certiorari, § 17b. The mere exercise of judgment or discretion is not sufficient to characterize an act as judicial. Ibid.

Some courts hold an inferior tribunal that is not a court exercise a judicial function only when the parties have a legal right to demand a hearing in accordance with judicial procedure. See South View Cemetery Ass'n v. Hailey, 199 Ga. 478, 34 S.E.2d 863, 866, and citations. Some cases involving the removal of a public officer or employee apply the test whether the law requires notice and hearing as a condition precedent to such removal. 2 McQuillin, Mun'l Corps., 2d Ed., section 587(563), pages 472, 473, section 595(571), page 502; 10 Am.Jur., Certiorari, section 15. We have never so restricted the right of review by certiorari. On the contrary we have upheld such right in a number of cases which seem to warrant the conclusion such action was proper here.

Smith v. Powell, 55 Iowa 215, 217, 7 N.W. 602, 603, holds certiorari will lie to review the direction by a school board to its secretary not to certify to the board of supervisors a tax which had been voted by the electors. The opinion says: '* * * 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 Bremer County v. Walstead, 130 Iowa 164, 169, 106 N.W. 352, 354, we hold certiorari will lie to review the rescission by a board of supervisors of its prior action in appropriating funds for the erection of a bridge. The opinion states: 'Certiorari has several offices, among which is that of supplying defects of justice in cases obviously entitled to redress, and yet unprovided for by the ordinary forms of proceedings. 4 Eneyc.Pl. & Pr. 9. It is especially applicable in cases where inferior boards, officers, or tribunals exceed their authority and no method of appeal has been provided by statute.'

Jewett v. Ayres, Judge, 167 Iowa 431, 435, 149 N.W. 529, 531, states: '* * * it must be accepted as the settled doctrine that, when there is no remedy by appeal, and there has been by the inferior tribunal such act as to constitute error affecting substantial rights, or an abuse of power in the exercise of its jurisdiction, the aggrieved party may avail himself of this remedy.'

We have held certiorari lies to review: Vacating or extending of streets and alleys by a city council (Lerch v. Short, 192 Iowa 576, 185 N.W. 129, and citations); a void assessment on personal property of one whose domicile had been removed from the state (Remedy v. Board of Equalization, 80 Iowa 470, 45 N.W. 899); action of a city council in passing on a petition for reduction of taxes (Collins v. Davis, 57 Iowa 256, 260, 10 N.W. 643, and citations); refusal of the secretary of state and the state executive council to file articles of incorporation (Lloyd v. Ramsay, 192 Iowa 103, 117, 183 N.W. 333); action of the state highway commission in instituting condemnation proceedings (Jenkins v. State Highway Commission, 205 Iowa 523, 526, 218 N.W. 258). In Rehmann v. City of Des Moines, 204 Iowa 798, 804, 215 N.W. 957, 960, 55 A.L.R. 430, we say, 'The action of the council in adopting the resolution of revocation of the (building) permit was of a judicial or quasi judicial character, * * *.'

Riggs v. Board, Bremer County v. Walstead and Smith v. Powell, and supra, seem to hold certiorari proper in part because there was no appeal from the action complained of and the aggrieved party would be without remedy if it were held certiorari would not lie. See also Marcus v. Board of Street Com'rs, 252 Mass. 331, 147 N.E. 866, 867; Narragansett Racing Ass'n v. Kiernan, 59 R.I. 79, 194 A. 49, 50.

Prior to July 4, 1943, when the Rules took effect, certiorari would lie only where there was no other plain, speedy and adequate remedy. Section 12456, Code 1939, and corresponding sections in earlier codes. Rule 306, quoted above, makes no such requirement and Rule 308 provides certiorari shall not be denied because plaintiff has another plain, speed or adequate remedy. The Rules thus indicate a purpose to broaden the scope of review by certiorari.

It is plain their is no right of appeal here from the challenged action. Defendants do not suggest any remedy other than certiorari that was available to plaintiff. Unless certiorari lies, it is doubtful at best if any remedy was open to plaintiff by which to test the legality of this resolution. We are reluctant to hold a litigant is without any remedy.

While plaintiff's right to the office to which he had been elected is not a property or contract right, it is at least a privilege which entitles him to the protection of the law to the end he might exercise the functions of the office until the end of his term or his resignation or removal or the forfeiture of the office. 42 Am.Jur., Public Officers, section 9; In re Carter, 141 Cal. 316, 74 P. 997, 998; Donahue v. County of Will, 100 Ill. 94, 104.

One test of the judicial character of an act is whether it goes to the determination of some right the protection of which is the peculiar office of the courts. Belk's Department Store Inc., v. Guilford County, 222 N.C. 441, 23 S.Ed.2d 897, 902. To substantially the same effect is National Ben. Acc. Ass'n v. Murphy, 222 Iowa 98, 101, 269 N.W. 15, where we hold certiorari lies to review the refusal...