Mathews v. Turner

• Decision Date: 05 May 1931
• Docket Number: No. 40900.,40900.
• Citation: 236 N.W. 412,212 Iowa 424
• Parties: MATHEWS v. TURNER, GOVERNOR, ET AL. (HAISLET, INTERVENER).
• Court: Iowa Supreme Court

212 Iowa 424

236 N.W. 412

MATHEWS

v.TURNER, GOVERNOR, ET AL. (HAISLET, INTERVENER).

No. 40900.

Supreme Court of Iowa.

May 5, 1931.

Appeal from District Court, Polk County; Loy Ladd, Judge.

Action in equity by a resident and taxpayer of the State of Iowa to enjoin the Governor and Secretary of State from calling a special election to vote upon the question of the adoption of a proposed amendment to the Constitution. The issues are fully stated in the opinion. The court dismissed the petition of the plaintiff and also of the intervener. The plaintiff and intervener appeal.

Reversed.

STEVENS, EVANS, and MORLING, JJ., dissenting.Leonard Simmer, of Ottumwa, and Strock, Sloan & Herrick, of Des Moines, for plaintiff appellant.

Fred H. Free, of Sioux City, for intervener appellant.

Ben J. Gibson and Stipp, Perry, Bannister & Starzinger, all of Des Moines (W. L. Bliss, of Mason City, Chas. M. Dutcher, of Iowa City, Emmet Tinley, of Council Bluffs, B. F. Swisher, of Waterloo, James A. Devitt, of Oskaloosa, LaMonte Cowles, of Burlington, W. A. Smith, of Dubuque, Dana Waterman of Davenport, J. E. E. Markley, of Mason City, and David W. Stewart, of Sioux City, of counsel), for appellees.

John Fletcher, Atty. Gen., amicus curiæ.

PER CURIAM.

A joint resolution of the two Houses of the General Assembly of the State of Iowa proposing an amendment to the Constitution relating to the incurring of a state debt and the issuance and sale of state bonds, and containing other provisions, was adopted by the Forty-Third General Assembly and passed to the next General Assembly for its action thereon. By a similar joint resolution, the Forty-Fourth General Assembly also approved the proposed amendment to the Constitution, and, by a further joint resolution, made provision for a special election to be held June 16, 1931 at which the electors may vote upon the question of the adoption or rejection of such proposed amendment. The joint resolution providing for the holding of a special election directs the Governor, at least thirty days before the date of said election, to issue his proclamation in relation thereto, and to transmit a copy thereof to the sheriff of each county, and also directs the Secretary of State, not less than twenty days preceding the date of said election, to transmit to the auditor of each county a certified copy of the proposed amendment to the Constitution, together with a sample ballot to be used at said election, and directs the sheriff of each county to give at least ten days' notice of the holding of said election by causing a copy of the proclamation of the Governor to be published in a newspaper of general circulation printed in each of the respective counties.

This action is brought by a resident and taxpayer, who is also the owner and driver of a motor vehicle in this state, to enjoin the Governor and the Secretary of State from performing the duties and functions above stated in calling said special election.

S. A. Haislet, who is also a resident and taxpayer of the state of Iowa, filed a petition in intervention in the action, setting up the invalidity of House File No. 154, enacted by the Forty-Fourth General Assembly, under the terms and provisions of which it is assumed that the plaintiff instituted this action.

The appellee appeared and filed a motion to dismiss the petition of the plaintiff upon the ground that it appeared upon the face thereof that he is not entitled to the relief sought for the reason that the proposed constitutional amendment complies with all of the provisions of the Constitution of the State of Iowa pertaining to its amendment, and that it is not in violation of any of the provisions of the Constitution of the United States.

Intervener withdrew his petition of intervention and filed a motion to dismiss the petition. The motion of appellees was sustained and the motion of the intervener overruled. Plaintiff's petition was dismissed. Both the plaintiff and intervener elected to stand upon their respective pleadings, and judgment was accordingly entered against them as stated.

[1][2] House file No. 154 purports to confer upon any taxpayer the right to intervene in an action of this kind on condition that he join either the plaintiff or the defendant in the case. It is our conclusion that the alleged intervener in this case has no standing in this court, and his propositions are not entitled to any consideration for the reasons: First, that the only method of intervention is by petition which the intervener filed in this case and afterwards withdrew. When he did so, he ceased to be a party to the case. Second, the purported statute authorized him, as such intervener, only to join as a party plaintiff or defendant. He did neither in this case, and under these conditions, he can present nothing to the court for consideration.

We therefore treat the plaintiff as the sole appellant.

This leaves before us only such questions as are raised between the original parties to the action, and under the issues thus framed, no question whatever is raised with reference to the jurisdiction or power of this court to pass upon the matters before us. This question not being raised, we express no opinion thereon, and reserve any pronouncement as to the validity or constitutionality of said House File No. 154, or as to the jurisdiction or power of the court to entertain this appeal.

By joint resolution the Forty-Third General Assembly approved of a proposed amendment to the Constitution and duly referred it to the Forty-Fourth General Assembly, which also approved it, and ordered it submitted at a special election to be held on June 16, 1931.

Proceeding under an act of the Forty-Fourth General Assembly known as House File No. 154, the appellant, as a taxpayer, instituted the instant suit to secure an injunction restraining the Governor and Secretary of State from taking the necessary steps for the due proclamation and holding of said election. The trial court denied the relief sought.

The proposed amendment provides as follows:

“Section 1. Notwithstanding the provisions of article VII or any other provision of the Constitution of Iowa, the State may, by Act of the General Assembly, contract an indebtedness not to exceed one hundred million dollars ($100,000,000.00) for the improvement of highways and for the payment or retirement of county primary road bonds and bonds issued to refund county primary road bonds; and for such purposes may issue bonds and provide ways and means for the payment of the same, and may pledge the credit of the state therefor. Such act shall pledge to the payment of such bonds and interest thereon such rates or amounts of motor license fees and/or gasoline or other motor fuel license fees as may be determined by the General Assembly to be sufficient to meet both principal and interest as they mature and accrue; and shall provide for the levy, imposition, collection and pledge of such general property tax as may be required to supply the deficiency, if any, between the amount of principal and interest due on the bonds during any year or years and the funds produced by said pledged license fees during such year or years; and it shall be a sufficient statement of such tax that such act direct the Executive Council annually to compute such deficiency, if any, and fix the rate necessary to produce such amount. The provisions of such act pledging funds and levying taxes for the payment of principal and interest of bonds issued thereunder shall be irrepealable so long as any of such bonds are outstanding, unpaid and uncalled. Such bonds may be issued from time to time on such terms as the General Assembly shall by law provide; but each bond shall become due and payable not more than twenty years after its date.

Sec. 2. After bonds in the total principal sum of one hundred million dollars ($100,000,000.00) shall have been issued hereunder, all power to create an indebtedness hereunder shall cease.

Sec. 3. No funds derived from the sale of any of the bonds provided for in Section One (1) of this Article XIII shall be used in the improvement of any other highways until after the following highways shall have been improved in the following manner: (a) By grading, draining, bridging and paving:”

Here follows a detailed description of some forty-six primary roads.

The proposed amendment then provides:

“(b) By grading, draining, bridging and surfacing with gravel, sand clay, or other type of surfacing; all other primary roads.

Nothing herein shall prohibit the changing of the number of any road or part thereof, or the changing of the location of any primary road between the cities and towns named herein.

Sec. 4. Any law adopted by the General Assembly authorizing the issuance of bonds under this Article XIII shall provide that the principal of all county primary road bonds and bonds issued to refund county primary road bonds, outstanding when said law becomes effective, shall be paid, as such bonds mature, or become subject to call, from the proceeds of the state bonds. Upon the issuance of the first state bonds under such law the authority of the counties to issue county primary road bonds shall cease.”

Appellant contends that said proposed amendment violates the provisions of article 10 of the Constitution, which is in part as follows:

“Section 1. Any amendment or amendments to this Constitution may be proposed in either House of the General Assembly; and if the same shall be agreed to by a majority of the members elected to each of the two Houses, such proposed amendment shall be entered on their journals, with the yeas and nays taken thereon, and referred to the Legislature to be chosen at the next general election, and shall be published, as provided by law, for three months previous to the time of making such choice; and if, in the General Assembly so next chosen as aforesaid, such proposed amendment or amendments shall be agreed to, by a majority of all the...