Sherman v. City of Des Moines

• Decision Date: 09 December 1896
• Citation: Sherman v. City of Des Moines, 100 Iowa 88, 69 N.W. 410 (Iowa 1896)
• Parties: SHERMAN ET AL. v. CITY OF DES MOINES ET AL.
• Court: Iowa Supreme Court

100 Iowa 88

69 N.W. 410

SHERMAN ET AL.

v.CITY OF DES MOINES ET AL.

Supreme Court of Iowa.

Dec. 9, 1896.

Appeal from district court, Polk county; W. F. Conrad, Judge.

March 14, 1889, the office of the board of public works of the defendant city was filled by the appointment of M. H. King for the term of three years and Martin Tuttle for the term of two years.The city was organized under the annexation act in the spring of 1890, and on April 21, 1890, King and Tuttle relinquished the office.On the same day Robert S. Finkbine and R. L. Chase were appointed to said office, there being no designation as to the extent of their terms of office.They entered the office and held it until April 7, 1894, when Gen. Ed. Wright and John Sherman were appointed to succeed them, there being no designation as to their terms of office.Doubt having arisen in the mind of the then mayor, Isaac L. Hillis, as to the terms of office of their predecessors, he consulted counsel, who rendered an opinion, whereupon, on April 27, 1894, the said mayor reappointed said parties, in a written communication to the council, wherein it was stated that Gen. Wright had agreed that his term should expire on the third Monday of April, 1895, and that the term of John Sherman should be for three years, commencing with the third Monday in April, 1894.Wright and Sherman continued to hold the office until the death of the former, in December, 1895, when the mayor appointed the defendantGeorge C. Sims in place of the deceased.The present mayor, who was elected in the spring of 1896, acting upon the assumption that the terms of office of both Sherman and Sims had expired, proceeded to appoint C. D. Boardman and Edward W. Crellin, the appellants, as a board of public works.A controversy having arisen as to the right of possession to the said office between the then incumbents and the new appointees, and the latter, as is alleged, threatening to take forcible possession of the same, plaintiffs filed a bill in equity and obtained an injunction preventing appellants from taking possession of said office.Such further proceedings were had that the parties entered into a written stipulation that the petition filed in that action should be considered as an information, in quo warranto, and that, upon the issues made by said petition and the answer thereto, his honor, Judge Conrad, should determine the question of the right of the parties to said office upon its merits, and enter judgment accordingly, the judgment to have the same force and effect as if rendered in a quo warranto proceeding.The case was heard by Judge Conrad, who decided that the incumbents and appellees, Sherman and Sims, were rightfully in the possession of the office, and the injunction was made permanent until the expiration of their terms of office.The defendants appeal.Affirmed.J. L. Myerley and Bishop, Bowen & Fleming, for appellants Boardman and Crellin.

J. K. Macomber, City Atty., for appellantsCity of Des Moines and John McVicar, mayor.

Cummins, Hewitt & Wright, for appellees.

KINNE, J.

1.This record presents but a single question for our determination, and that is whether the incumbents and appellees or the appellants Boardman and Crellin are entitled to the office in controversy.The claims of the parties may be summarized thus: The incumbents claim: First.That the act creating the board of public works did not fix the time when the persons constituting such board should be appointed, or when their terms should expire; that no terms were created; that it provided that, when an appointment was made, it should be for three years, and until their successors were appointed; and, when a successor was appointed, either at the expiration of the three years or sooner, it must be for three years.Second.That the act of the legis lature known as the “Annexation Act” had no reference to the office or the officers of the board of public works, and in no manner affected the terms of office created in the original act.Third.If said annexation act did have reference to the board of public works, it affected the term of the officers of the board then in office, and in no manner referred to the term of office.Appellants Boardman and Crellin contend: First.That the act creating a board of public works also created fixed and definite terms of office; that by that act one of the first appointees was to hold office for two years, and the other for three years, and thereafter each succeeding three years constituted a term of office.Second.That the annexation act terminated the terms of office of the board, and created new terms of the same duration as the old, and to commence with the third Monday of April, 1890, and at the expiration of each three years thereafter.

We shall not discuss all of these points of contention, but content ourselves with the consideration of the first two claims made by counsel for the incumbents, which, in view of the conclusion we have reached, will be decisive of the rights of these contending parties.The following are the statutory provisions touching the matter under discussion: Chapter 1, § 1, of the Acts of the Twenty-Second General Assembly provides: “There shall be established and created in every city of the first class, having a population according to any legally authorized census of more than thirty thousand inhabitants, a board of public works, which shall consist of two members, residents of such city, to be appointed by the mayor, by and with the approval of the city council, on or before the first Monday of April, 1889.One member shall be appointed for the term of two years and the other for the term of three years, and they shall hold their office until their successors are duly appointed and qualified, and their successors shall be appointed in the manner hereinbefore provided for the term of three years.The mayor shall fill all vacancies occurring in said board by and with the approval of the city council, but no member of the city council or city officer shall be appointed a member of said board.”March 13, 1890, the Twenty-Third general assembly passed what is known as the “Annexation Act,” which provided for the enlargement of the corporate limits of certain cities, Des Moines being the only city to which it could apply.The fifth section of said act reads: “In all cities affected by this act the regular municipal election shall be held on the first Monday in April, in the year 1890, and in each alternate year thereafter.At such election there shall be elected all elective officers for such terms and in such manner as now provided by law for cities of the first class.Said officers shall qualify within the time and in the manner now provided by law, and the terms of office of all officers in office prior to said first election in all such cities or towns shall cease and determine upon the organization of...