Piuser v. Sioux City
| Citation | 262 N.W. 551,220 Iowa 308 |
| Decision Date | 24 September 1935 |
| Docket Number | 42692. |
| Parties | PIUSER v. SIOUX CITY et al. |
| Court | United States State Supreme Court of Iowa |
Appeal from District Court, Woodbury County; F. H. Rice, Judge.
Action in equity to enjoin mayor and city clerk of defendant city from calling a special election. The opinion states the facts. From a decree in favor of the defendants, plaintiff appeals.
Affirmed.
Fred H. Free, of Sioux City, for appellant.
H Clifford Harper and A. O. Jepson, both of Sioux City, Frank Duggan, of Goodwin, Neb., and Bernard Brown and D. F. Loepp both of Sioux City, for appellees.
On the 19th day of August, 1932, there was filed in the office of the city clerk of the city of Sioux City, Iowa, a petition consisting of 353 separate sheets of paper purporting to contain the names of qualified electors of said city, asking the city council to call an election and submit thereat the question of voting general obligation bonds of the city in the sum of $2,500,000 for the purpose of erecting and constructing a municipal electric light and power plant. Pursuant to direction of the city council, the city clerk caused an examination to be made of the said petition in order to determine its sufficiency, and was about to report the result of such examination to the city council when, on the 25th day of August, 1932, the plaintiff herein instituted this action to enjoin the city clerk from certifying the legal sufficiency of said petition either in form or substance, and to enjoin the mayor and defendant commissioners of the said city from passing any resolution providing for or authorizing the calling or holding of any special election as requested in said petition. A temporary injunction was issued as prayed and thereafter issue was joined and the case proceeded to trial before Hon. R. A Oliver, one of the judges of the district court of Woodbury county, Iowa, on September 26, 1932. Some testimony was taken in open court, but, it appearing that the trial of the case would involve a complicated search of records of registration and comparison with the names on the petition, the court ordered the case referred to a referee for the purpose of taking testimony, with direction to return his findings of fact. Pursuant to such order, further testimony was taken and early in January, 1934, the referee made a preliminary report of certain findings of fact with a request for further instructions. At this time Judge Oliver, who had ordered the reference, had been succeeded in office by F. H. Rice, as judge of the district court of Woodbury county, and the plaintiff filed objections and exceptions to the findings of the report. He also objected to Judge Rice acting in the case on the ground that he was disqualified, and asked that the case be transferred to some other district judge. The court overruled both the motion for transfer and the exceptions to the report, and proceeded to give the referee the instructions requested in his preliminary report. Thereafter, the referee filed his final report, to which the plaintiff filed further exceptions in which he renewed his objections to Judge Rice acting in the case. Upon hearing, all such exceptions and objections were overruled, and the court entered a decree dismissing plaintiff's petition, dissolving the temporary injunction, and taxing the costs to the plaintiff. From this decree and the prior orders and rulings of the court, the plaintiff appealed.
While this action is in equity and, as such, is triable de novo in this court, the plaintiff has set out and argued fourteen errors relied upon for reversal. The propositions involved in these alleged errors go to the insufficiency of the petition to confer jurisdiction upon the city council, and to the disqualification of Judge Rice to hear or act in the case, and it is to these propositions that we now devote our attention.
Section 6239 of the Code, 1931, provides:
Section 6241 provides that no indebtedness shall be incurred for the purposes enumerated in section 6239 until authorized by an election. And section 6242 provides that proceedings for such election may be instituted by the counsel, but that, before an election may be called for any of the purposes enumerated in subdivision 1 of section 6239, a petition shall be filed requesting such action and " shall be signed by qualified electors of the city or town equal in number to twenty-five per cent of those who voted at the last regular municipal election."
It is the contention of appellant that the petition in this case is entirely insufficient to furnish a basis for the city council to call an election, because neither the individual sheets nor the petition as a whole had indorsed thereon or attached thereto any affidavit as to the authenticity of the signatures or as to the qualifications of the persons whose names appear thereon in regard to being electors. Appellant cites section 655-a19 of the Code of 1931, which requires that nomination papers for the nomination of candidates for office by petition shall be verified by an affidavit of at least one of the signers of the petition showing the name and residence of the nominee and the office to which he is nominated, that the signers are qualified voters of the state and entitled to vote for such nominee for such office, and that each of the petitioners voluntarily signed the petition. He also refers to sections 541, 640. 5588, 5589, and 6478 of the Code of 1931 in support of his argument that the petitions in this case should have been verified by an affidavit. Section 541 appears in the chapter on nominations by primary election and contains the requirements to be observed in the signing of petitions of nomination. Section 543 in the same chapter provides for an affidavit to be attached to such nomination papers. Section 640, also in the chapter in regard to nominations by primary election, provides that the duty of the county auditor and board of supervisors shall, in municipal elections, devolve upon the city auditor and city council. Sections 5588 and 5589 appear in the chapter concerning the incorporation of towns, the former providing for a petition of qualified electors and the latter requiring proof of the residence and qualifications of the petitioners as may be directed by the court. Section 6478 appears in chapter 326 concerning the government of cities by commission, specifically refers to the petitions provided for in that chapter, and specifically prescribes the requirements of such petitions and the method of proof of the qualifications of the signers thereof. In each of the statutes cited by appellant, the statute itself specifically states the requirements of the petitions in regard to the name, address, and date when signed, and also specifically provides for proof of the qualifications of the signers either by accompanying affidavit or as may be directed by the court. We might add that sections 6497, 6498, 6539, 6544, and 6556, which are not referred to by appellant, although all of them appear in the chapter concerning government of cities by commission, also set out specifically the requirements of the petitions to which they refer and specifically state the proof required as to the qualifications of the signers.
Section 6242, subd. 1, with which we are concerned in the instant case, does not appear in the same chapter of the Code as any of the statutes above referred to, but is found in chapter 319, which contains provisions in regard to the indebtedness of cities and towns. Neither the section itself nor the chapter in which it occurs contains any provision in regard to the addresses of the petitioners, the dates when signed, the proof of the signatures and qualifications of the signers, nor any other requirement except that " the petitions shall be signed by qualified electors of the city or town equal in number to twenty-five per cent of those who voted at the last regular municipal election." Appellant has pointed out no provision of any statute requiring that petitions generally shall show the addresses, dates of signing, or verification of the qualifications of the signers, where such requirement is not specifically imposed by statute. He refers to the case of Eckerson v. City of Des Moines, 137 Iowa, 452, 115 N.W. 177, as authority for the contention that, in defining or interpreting a term used in one statute, the court may have recourse to the meaning as shown by another statute. The principle laid down in that case, however, can have no application to the proposition which we are now discussing, because in none of the statutes to which appellant refers is there any attempt to define or give meaning to what is meant by a petition in general. In each of these statutes provision is made for a particular kind of a petition to be used for a particular purpose, and, in addition to requiring a petition, the statute expressly enumerates in detail the requirements that must be complied with in connection therewith.
Appellant contends, however, that, even if the petition be not required to have an affidavit showing the qualifications of the signers, in addition to the name and address and date of signing of each petitioner, it is still insufficient because it contains less than 25 per cent. of the qualified electors as required by statute. In support of this contention appellant argues that the term " qualified electors," as used in section 6242,...
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