Peverill v. Bd. of Sup'rs of Black Hawk Cnty.

• Citation: 222 N.W. 535,208 Iowa 94
• Decision Date: 14 December 1928
• Docket Number: No. 39127.,39127.
• Parties: PEVERILL v. BOARD OF SUP'RS OF BLACK HAWK COUNTY ET AL. (REUTER, INTERVENER).
• Court: United States State Supreme Court of Iowa

208 Iowa 94

222 N.W. 535

PEVERILL

v.BOARD OF SUP'RS OF BLACK HAWK COUNTY ET AL. (REUTER, INTERVENER).

No. 39127.

Supreme Court of Iowa.

Dec. 14, 1928.

Appeal from District Court, Black Hawk County; H. B. Boies, Judge.

An action to restrain the defendants from publishing or causing to be published a notice of enrollment of Black Hawk county under the accredited plan of the law known as the “Bovine Tuberculosis Eradication Act.” John Reuter intervened, and joins in the prayer of plaintiff's petition. The district court sustained a motion to dismiss, and the plaintiff and intervener appeal. Affirmed.McCoy & Beecher and Mears, Lovejoy, Jensen & Gwynne, all of Waterloo, for appellants.

John Fletcher, Atty. Gen., Earl Wisdom, Asst. Atty. Gen., and A. G. Reid, Asst. Co. Atty., of Waterloo, for appellees.

ALBERT, J.

This is the second appeal of this case, the opinion in the first appeal being reported in 201 Iowa, 1050, 205 N. W. 543. After a reversal and on August 12, 1926, the plaintiff filed an amended and substituted petition, and on March 16, 1927, John Reuter filed a petition of intervention. As the case was disposed of in the lower court on motion to dismiss each of the petitions, it may be necessary to later summarize their contents.

The first division of our former opinion in this case simply holds that plaintiff, H. G. Peverill, was not entitled to complain of the constitutionality of chapter 48, Laws of the 40th G. A., because his petition did not allege that he had signed any agreement with the commissioner of animal health (the secretary of agriculture). The second division holds that the pleading does not assault chapter 23 of the Laws of the Extra Session of the 40th G. A. Division 3 holds that, because plaintiff does not allege that he is a breeder of cattle, or that he signed an agreement consenting that his herd, if he is in fact a breeder, might be tested under the act, and its not appearing that he is in any way prejudiced by the change in the law, he is not, therefore, in a position to question the validity of the enactment upon the ground alleged. Next, that the invalidity of a particular provision of one section of the chapter will not invalidate the full chapter.

Division 4 deals with section 25 of chapter 23 of the Laws of the Extra Session of the 40th G. A., and chapter 94, Supplement to the Laws of the Extra Session, which in express terms legalizes the act of the secretary of agriculture of which complaint is now made. The holding is that there were no proper pleadings calling into question the constitutionality of chapter 23 of the Laws of the Extra Session of the 40th G. A., and therefore the question was eliminated from the discussion.

The opinion closes with the statement that: “The petition does not state a cause of action, nor is appellee entitled to the relief prayed. The demurrer should have been sustained.” And the case was remanded. On its reappearance in the district court, plaintiff filed an amended and substituted petition, in which he substantially added the elements necessary to the making of a good petition, which the former opinion in this case held were wanting.

The intervener, John Reuter, thereupon filed a petition of intervention, in which he made substantially the allegations contained in plaintiff's amended and substituted petition, and the further allegation that said intervener had signed the petition or agreement required by the statute. Both of these petitions contained the necessary allegations, and raised the constitutional questions hereinafter referred to. Each was attacked by a separate motion to dismiss. These motions were substantially the same, and sufficiently raise all questions hereinafter discussed.

The first division of the appellant's argument is devoted to the question of whether or not injunction is the correct remedy in this proceeding. This question is raised in the motion to dismiss, wherein it is said that the proper remedy is certiorari, and not injunction, but in argument the defendants waive this question and say they do not care to urge the same. We will therefore give it no further attention.

Division 2 is devoted to a discussion of the question that the secretary of agriculture was guilty of fraud, acted fraudulently, failed to discharge his duty, and was guilty of a breach of trust. By reason of a question to be discussed later, we will give no attention to this proposition at the present time.

[1] The third division is devoted to a discussion of the constitutionality of the legislative acts which it is claimed impair the obligation of the contracts. The agreements were signed under the original law, which provided for compensation in case of the slaughtering of animals found to react to the tuberculin test. Later, by amendment, it was provided that 5 per cent. of the value of the whole herd should be deducted before the owner should receive any compensation (see section 10k, chapter 48, Acts of the 40th G. A.); hence it is claimed that this impairs the obligation of contracts. Whatever merit there is in this contention is eliminated by reason of section 1, chapter 54, Acts of the 42 G. A., which repealed the provision as to the deduction of 5 per cent. of the value of the whole herd. This latter law went into effect before the decision of this matter in the lower court; hence the question becomes entirely moot.

Division 4 is devoted to a discussion of the constitutionality of the law as it existed at the time it was sought to establish Black Hawk county under the accredited area plan. If found necessary, this matter will be given further attention later.

The next proposition is that the curative act did not render valid the act of the board of supervisors and the secretary of agriculture--make constitutional that which was previously unconstitutional. Under this proposition it is argued that neither the board of supervisors nor the secretary of agriculture had jurisdiction to perform the acts they did in respectively declaring Black Hawk county to be a “county area” and an “accredited area.” Narrowed down, the claim is that, where an inferior officer or body acts without jurisdiction in the first instance, such action cannot be given life and vitality by a legalizing act later passed by the Legislature.

In Coggeshall v. City of Des Moines, 78 Iowa, 235, 41 N. W. 617, 42 N. W. 650, a pavement assessment was held void because of want of jurisdiction, as the city had no power to make the same because of its failure to follow certain statutory requirements. Subsequent thereto, the Legislature, by the enactment of chapter 44 of the Acts of the 22d G. A., sought to legalize these assessments.

In the case of Tuttle v. Polk & Hubbell, 84 Iowa, 12, 50 N. W. 38, the question was raised as to the legality of this legalizing act. In the latter case it is said: “It is conceded that it is within the power of the Legislature to legalize any defect in proceedings of this kind if the defect or omission or want of compliance with the law is such that it might have been dispensed with by a prior statute. We understand this to be the rule in all courts in this country. Boardman v. Beckwith, 18 Iowa, 292;State v. Squires, 26 Iowa, 340;Richman v. Board of Supervisors, 77 Iowa, 517 [42 N. W. 422, 4 L. R. A. 445, 14 Am. St. Rep. 308]. * * * Some of the cited cases hold that the defective proceedings may be made valid by subsequent legislation, where by reason of the defect or omission the proceeding was absolutely void. It was, therefore, competent for the Legislature to have passed an act legalizing the proceedings by declaring that the contracts for the paving should be valid, notwithstanding the omission to comply with the statute in the matter of determining the kind of material before advertising for bids. It was competent for the Legislature to have provided that the work might be let to bidders without first determining the material to be used, and to take bids for any kind of material, and let the contracts for that kind which it was thought would best subserve the public interests. And the authorities cited hold that this curative legislation may be enacted while suits are pending in the courts involving the validity of the defective proceedings.”

In the case of Richman v. Board of Supervisors of Muscatine County, 70 Iowa, 627, 26 N. W. 24, a ditch levy was held to be void for want of jurisdiction. The Twenty-First General Assembly passed a curative act legalizing the proceedings, and in Richman v. Supervisors of Muscatine County, 77 Iowa, 513, 42 N. W. 422, 4 L. R. A. 445, 14 Am. St. Rep. 308, we held that the legalizing act was constitutional. See, also, Iowa Railroad Land Co. v. Soper, 39 Iowa, 112. In the latter case another point raised by the appellant was disposed of adversely to his contention, where it was held that such legislation is not obnoxious to section 30, article 3, of the Constitution, providing against local or special laws.

In the case of Utter v. Franklin, 172 U. S. 416, 19 S. Ct. 183, 43 L. Ed. 498, the United States Supreme Court had before it this identical question. The territory of Arizona had issued certain bonds, which were void, because not authorized by an act of Congress. The Supreme Court of the United States so held. Later Congress passed a legalizing or curative act validating said bonds. In the Utter Case that court said: “The fact that this court had held the original Pima county bonds invalid does not affect the question. They were invalid because there was no power to issue them. They were made valid by such power being subsequently given, and it makes no possible difference that they had been declared to be void under the power originally given. The judgment in that case was res judicata only of the issues then presented, of the facts as they then appeared, and of the legislation then existing.” The case holds that Congress had the power to thus validate said bonds.

We said in the former ...