Morris v. Hosmer
| Citation | 166 N.W. 295,182 Iowa 883 |
| Decision Date | 09 February 1918 |
| Docket Number | No. 31963.,31963. |
| Parties | MORRIS v. HOSMER, COUNTY AUDITOR, ET AL. |
| Court | United States State Supreme Court of Iowa |
OPINION TEXT STARTS HERE
Appeal from District Court, Woodbury County; George Jepson, Judge.
The representatives of school corporations, who, when in session, are authorized to add to the salary of the county superintendent as fixed by statute “such further sum by way of compensation as may be just and proper,” made the following allowance to the appellant who was by the same body chosen to be county superintendent, to wit:
“That the superintendent's salary be increased to $2,500, with the understanding that at least $500 is to be used as expenses in addition to the $250 allowed by law; that the salary of the assistant be increased to $720 per year.”
The defendants took the position that this fixed the salary at $2,000, and that the balance of the $2,500 was for reimbursement for additional expenses. The view of the plaintiff is that, despite what is said about additional expenses, his salary was fixed at $2,500. The controversy was submitted to the trial court on an application of the plaintiff for a mandatory order to compel payment in accordance with plaintiff's interpretation. This relief was denied, the petition dismissed, and the plaintiff appeals. Affirmed.Earl Edmunds, of Correctionville, for appellant.
Naglestad, Kindig & Mullan, of Sioux City, for appellees.
[1] I. It is the duty of the board of supervisors to make payment for goods it has lawfully bought for the county. But mandamus would not lie to compel it to do so. The reason is that, while mandamus is available to compel the performance of what an officer should do, the right to use such remedy is limited to cases where there is no other plain, speedy, and adequate remedy. In the supposed case an ordinary suit at law would be such remedy, wherefore mandamus would not lie, though the outcome of the suit at law would demonstrate that payment should have been made without suit. This appellant differs with the impleaded officers as to how much salary he is entitled to receive under an agreement that fixes such salary at some amount. If his term of office were at an end, he could not use the writ to recover the unpaid balance due him under his construction of the contract. The ordinarysuit at law to recover such balance would give plain, speedy, and adequate relief. But his term has not ended. Why should he not have a mandatory order compelling payment, if it be found that a balance is due because the plaintiff is and the defendants are not correctly construing the contract. A peremptory order that payment shall be made for the past and for the future at the rate claimed by plaintiff at once ends the whole controversy. If plaintiff be relegated to a suit at law, he can sue only for the balance now accrued to him on his theory. If he recover, that does no more than to pay him what has accrued to the time at which he brought suit. While it may be that the defendants would thereafter pay at the rate fixed by the outcome of such suit, they would be under no compulsion to do so, and captious officials, angered by the outcome of the suit, might put the plaintiff to suing at the end of every month, or, if he elected not to do this, he must wait until his employment has ended, and then sue for the balance due. We conclude that, in the circumstances, mandamus was the proper remedy.
[2] II. A body authorized to add to the compensation of the superintendent made written order that the “salary” of appellant “be increased to $2,500.” If this were all, the trial court erred in holding that the salary was but $2,000. But it is not all. While the written allowance does say that the “salary” shall be increased to $2,500, it says further that the increase is made “with the understanding that at least $500 is to be used as expenses in addition to the $250 allowed by law.” The expense allowance referred to is by statute limited to $250 yer year. The position of appellant is, of necessity, that the clause as to the understanding should be disregarded; that when it is once written that the salary shall be a stated sum, the salary is that sum, even if the sum fixed as salary is so fixed upon condition that a part of it must be expended for a stated purpose. The general rules of construction of writings are against this position. No part of what is written is to be dealt with as surplusage if in reason all that is written can be given effect. We do not understand that appellant is questioning this rule. It remains to be considered whether he has avoided it. What we have to determine is then whether, giving reasonable effect to all that was said, it was not the intention to grant a salary of $2,000; whether here is not a case of using the term “salary” inaccurately rather than using a phrase that has no meaning whatever if all allowed is for “salary.”
If it was intended to give a “salary” of $2,500, there was no occasion to say that it was done with the understanding that $500 should be paid out for expenses; the purpose to give a $2,500 salary would be effected beyond dispute by stopping after having ordered that the salary should be increased...
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