Shoemaker v. City of Des Moines

• Decision Date: 09 January 1906
• Citation: 129 Iowa 244,105 N.W. 520
• Parties: SHOEMAKER v. CITY OF DES MOINES ET AL.
• Court: Iowa Supreme Court

129 Iowa 244

105 N.W. 520

SHOEMAKER

v.CITY OF DES MOINES ET AL.

Supreme Court of Iowa.

Jan. 9, 1906.

Appeal from District Court, Polk County; Hugh Brennan, Judge.

It appears that in June, 1904, the city of Des Moines, this state, entered into a contract in writing with the Universal Voting Machine Company, of Bloomington, Ill., in which it was provided that said company “has this day sold and agreed to deliver on board cars at Bloomington, to said second party [[[the city] 15 voting machines of the model known as the ‘Universal Voting Machine.’ ” The contract then provides that the city shall pay for said machines the sum of $7,500, in 10 annual installments, the first to be due and payable as soon as the use of said machines in the conduct of elections in in the state of Iowa shall have been declared legal by a court of competent jurisdiction. The further agreement follows that no liability under said contract shall exist on the part of the city until the use of such machines in the conduct of elections in this state shall have been declared legal by a court of competent jurisdiction, and that, in the event that the use of said machines shall ultimately be declared illegal by a court of last resort, then the contract shall be void, and the city shall return all machines delivered, and the company shall refund all moneys paid. By a further provision the company agrees to hold the city harmless from all loss or damage, including the cost of special elections, if necessary, and costs of litigation, and which may arise from the use of said machines, and in the event such use shall subsequently be held by the courts of this state to be illegal or the election invalid because of the use thereof. Further, the contract requires the company to execute a bond in the sum of $5,000 for the faithful performance on its part of any and all conditions of the contract. The contract contains the condition that it shall be valid only in case of the purchase by the county of Polk of a like number of machines. On the same date a contract was entered into between said company and Polk county; the number of the voting machines agreed to be purchased being 36. The terms of payment as to time and amount are somewhat different from those agreed upon in the contract with the city, and the bond agreed to be given by the company is in the sum of $10,000. In all other material respects the contract appears to be identical with the city contract. This action is brought against the city and county by plaintiff, a voter and taxpayer, to restrain the carrying of such contracts into execution. The case coming before the court below on application for a temporary writ, it was stipulated that the hearing had should be upon the merits, and to be regarded as final. The trial resulted in a decree in favor of the defendants, and the plaintiff appeals. Affirmed.J. K. Macomber and Read & Read, for appellants.

Halloran & Starkey and Myerly & Myerly, for appellees.

BISHOP, J.

By chapter 37, p. 19, Acts 28th Gen. Assem. (Code Supp. 1902, tit. 6, c. 3a), the use of voting machines at all state, county, city, town, and township elections was authorized; and by the act boards of supervisors and councils of cities and incorporated towns were empowered to purchase and order the use of voting machines at all such elections. A commission to consist of three persons, to be appointed by the Governor, is provided for by the act, which shall examine all machines offered, and in respect thereto shall “make report to the Secretary of State upon the capacity of the said machine to register the will of voters, its accuracy and efficiency, and with respect to its mechanical perfections and imperfections. Their report shall be filed in the office of the Secretary of State and shall state whether in their opinion the kind of machine so examined can be safely used by such voters at elections under the conditions prescribed by this act. If the report states that the machine can be so used, it shall be deemedapproved by the commissioners, and machines of its kind may be adopted for use at elections as herein provided.” There is then set forth in the act provisions as to the construction of the machine which may be approved, thus: “A voting machine approved by the state board * * * must be so...