Peverill v. Board of Sup'rs of Black Hawk County
Decision Date | 14 December 1928 |
Docket Number | 39127 |
Citation | 222 N.W. 535,208 Iowa 94 |
Parties | H. G. PEVERILL, Appellant, v. BOARD OF SUPERVISORS OF BLACK HAWK COUNTY et al., Appellees; JOHN REUTER, Intervener, Appellant |
Court | Iowa Supreme Court |
REHEARING DENIED APRIL 5, 1929.
Appeal from Black Hawk District Court.--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 the intervener appeal.
Affirmed.
McCoy & Beecher and Mears, Lovejoy, Jensen & Gwynne, for appellants.
John Fletcher, Attorney-general, Earl Wisdom, Assistant Attorney-general, and A. G. Reid, Assistant County Attorney, for appellees.
ALBERT, J. STEVENS, C. J., and EVANS, FAVILLE, DE GRAFF, MORLING, KINDIG, and WAGNER, JJ., concur.
This is the second appeal of this case, the opinion in the first appeal being reported in 201 Iowa 1050. 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 Fortieth General Assembly, 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 Fortieth General Assembly. 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 because it does not appear 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 Fortieth General Assembly 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 Fortieth General Assembly, and therefore the question was eliminated from the discussion. The opinion closes with the statement that 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.
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 five per cent of the value of the whole herd should be deducted before the owner should receive any compensation (see Section 10-k, Chapter 48, Acts of the Fortieth General Assembly); 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 Forty-second General Assembly, 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 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, 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 Twenty-second General Assembly, 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:
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 Muscatine County, 77 Iowa 513, 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 (43 L.Ed. 498, 19 S.Ct. 183), 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:
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