Radosevich v. City of Ottumwa
| Decision Date | 13 January 1970 |
| Docket Number | No. 53134,53134 |
| Citation | 173 N.W.2d 522 |
| Parties | Carl RADOSEVICH, William J. Treneman, Tom Graham, and Board of Park Commissioners of the City of Ottumwa, Appellees, v. The CITY OF OTTUMWA, Richard M. Hofmann, Mayor, Virgil Johnson, Jr., M. Z. Bailey, Paul Heckart, Jr., Paul Troeger, Councilmen of the City of Ottumwa; Genevieve Howard, City Clerk of the City of Ottumwa, Appellants. |
| Court | Iowa Supreme Court |
William R. Dew, City Atty., Ottumwa, for appellants.
Walter F. Johnson, of Johnson & Bauerle, Ottumwa, for appellees.
We are faced with a legislative anomaly arising because of the dissonant provisions of the law relating to cities and towns.
The sole question, strictly statutory, is whether the city council exceeded its authority in ordaining the abolition of the Park Board.
It should be kept in mind that we have no authority to either enact or repeal legislation. That authority is vested in the General Assembly.
In the case before us there is no dispute as to the facts.
The City of Ottumwa is a municipal corporation having a population in excess of 30,000 operating under the Commission form of government prescribed by chapter 363B, Code 1966. This form of government was invoked by election in 1960 and has persisted since January 1, 1962 as a replacement of the Council-Manager form theretofore in force. The defendants-appellants are the city and the duly elected qualified and acting councilmen of the City of Ottumwa and the duly appointed, qualified and acting city clerk.
We are told in the briefs that Ottumwa is one of only three cities in Iowa governed by this chapter of the Code.
On January 2, 1968, the city council of Ottumwa by new ordinances attempted to abolish the Board of Park Commissioners which had been established since 1949, pursuant to chapter 370, Code 1966.
Plaintiffs-appellees, the duly elected members of the Board of Park Commissioners, brought an action by certiorari challenging the legality of the council's action.
Based upon an agreed Stipulation of Facts, the cause was submitted on written briefs. The trial court sustained the Writ of Certiorari, holding that the city council and members thereof exceeded their proper jurisdiction and otherwise acted illegally in attempting to abolish the Board of Park Commissioners.
This appeal followed.
We affirm, albeit with some reluctance because the result is a duplication of authority not necessarily conducive to harmony in municipal government.
I. Chapter 363B, Code of 1966, under which the defendant City is currently organized, relates to commission form of government.
Section 363B.1 provides:
The repeated use of the mandatory word 'shall' should be kept in mind. The emphasis throughout is added.
Section 363B.4 provides:
'Departments. The executive and administrative powers, authority, and duties in such cities Shall be distributed into and among five departments, as follows:
'1. Department of public affairs.
'2. Department of accounts and finances.
'3. Department of public safety.
'4. Department of streets and public improvements.
Chapter 368, Code of 1966, relates to general powers of cities and towns. Section 368.42 provides:
Chapter 370, Code of 1966, relates to park commissioners. The provisions thereof pertinent to this appeal are the same as in Chapter 370, Code of 1950. Those provisions are:
Section 370.1: * * *
'All other cities under thirty thousand population and towns may, by ordinance provide for the election of such park commissioners, * * *.
'Any city operating under the commission form of government having a department of parks and public property under a commissioner elected as superintendent thereof may, in its discretion whenever its population exceeds thirty thousand, So continue without electing the park commissioners required by this chapter. * * *' (Emphasis added.)
As noted, Ottumwa had established its park commission under chapter 370, in 1949; it could not therefore qualify for the exception created in the third paragraph of section 370.1.
II. The law applicable to government of cities by commission in 1949 appeared as chapter 416, Code of 1946. The applicable parts also appeared in the Code of 1950.
Section 416.88 of the 1946 and 1950 Codes provided:
Section 416.105, Codes 1946 and 1950, provided:
(Emphasis added.)
All provisions of chapter 416 in the 1950 Code relating to government of cities by commission were repealed or transferred in 1951 by the 54th General Assembly. There is now no chapter 416 in our present Code.
As noted, supra, cities operating under a commission form of government, such as appellant, now do so under the authority of chapter 363B, Code of 1966.
III. Appellants rely heavily on Eckerson v. City of Des Moines, 137 Iowa 452, 115 N.W. 177....
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