Smith v. Newell
| Decision Date | 13 November 1962 |
| Docket Number | No. 50850,50850 |
| Citation | 254 Iowa 496,117 N.W.2d 883 |
| Parties | Charles SMITH, Charles McKinney, Arthur Egkild and Howard Allgood, Appellees, v. B. E. NEWELL, O. E. Armstrong, Dan Figgins, Nels Lund and E. W. Armel, Individually and as Polk County Board of Supervisors and William E. McCulloch, Polk County Auditor, Appellants. |
| Court | Iowa Supreme Court |
Hansen, Wheatcraft & Galvin, Des Moines, for appellants.
Theodore T. Duffield and James A. Lorentzen, Des Moines, for appellees.
On January 2, 1962, the Sheriff of Polk County submitted the following communication to the County Board:
The Board approved the ninety day appointment. At the expiration of ninety days, the Sheriff wrote the Board:
'April 3, 1962.
To: Board of Supervisors:
From: Wilbur T. Hildreth, Sheriff.
'This is to advise you that I have re-appointed Charles Smith, Charles McKinney and Arthur Egkild as Bailiffs for the period beginning April 1, 1962 to December 31, 1962.
The Board refused to approve the appointment, contending the appointees were under compulsory retirement, because of their age.
The Board also refused to authorize the County Auditor to certify payment of salaries to the bailiffs and deputy although they all continued to perform their duties.
May 9, 1962, this action was commenced by the three bailiffs and the deputy, for issuance of writ of mandamus against the members of the Board, and against the County Auditor, ordering approval of Sheriff's appointments and payment of salaries.
The trial court ordered issuance of the writ as prayed. Defendants appealed.
We will quote the statutory provisions in the Iowa Code pertaining to the questions involved:
Appellees answer contending that appellants did not raise, plead or argue this question in the District Court trial, and cannot present it here for the first time.
The record discloses appellees are correct. The question was not referred to in defendants' answer, nor in the stipulation as to matters to be tried. It was not decided or touched upon by the Trial Court in its findings of fact and conclusions of law, nor in the Decree. We therefore cannot give it any extended consideration here. Bull v. Kennan, 100 Iowa 144, 69 N.W. 433; Weis v. Morris, 102 Iowa 327, 71 N.W. 208; Battles v. Roberts, 120 Iowa 747, 95 N.W. 247; Conkling v. Standard Oil Co., 138 Iowa 596, 600, 116 N.W. 822, 824; In re Sarbaugh's Estate, 231 Iowa 320, 1 N.W.2d 105, 107; Bates v. Bates, 237 Iowa 1408, 24 N.W.2d 460; In re Meldrum, 243 Iowa 777, 51 N.W.2d 881.
Also see State v. Rhein, 149 Iowa 76, 127 N.W. 1079, a case analogous to case at bar as to legal questions involved. Mandamus was involved in the case.
Conkling v. Standard Oil Co., supra, quoted in Sarbaugh Estate case, supra, states:
In their reply brief and argument appellants contend they raised the question by inference from some allegations in their answer. This is not sufficient. If they desired to raise it as a defense, they should clearly say so.
Suffice to say it is our opinion plaintiffs are in the correct forum.
Section 337.7 specifically provides the Sheriff shall appoint his bailiffs. They are responsible to him, and he is responsible for their work. The Board of Supervisors have no control over them. Only the Sheriff can discharge them.
Section 341.1, supra, states in part: 'Each * * * sheriff, * * * may, with the approval of the board of supervisors, appoint one or more deputies * * * for whose acts he shall be responsible.'
The intention of the legislature in the use of the word 'EMPLOYER' WAS TO DENOMINATE THE PERSON Who hired the employee, and to whom he was responsible, as the person with authority to extend the period of service beyond seventy years. There is no legislative language establishing the Board as the employer. Again see State v. Rhein, supra.
III. We will consider plaintiffs in two categories. 1st. The Bailiffs, plaintiffs Smith, Egkild, and McKinney. 2nd. Plaintiff, Deputy Sheriff Allgood, in charge of criminal affairs.
IV. Section 337.7, supra, pertains to bailiffs only. It provides for their appointment by the sheriff, and contains no provision for approval by the board of supervisors. The appointment of such three plaintiffs as bailiffs, when made by the Sheriff was final and complete. He carefully followed the provisions of Section 97B.46 as to the matter of their ages. The Board's refusal to approve, and the County Auditor's refusal to certify payment of their salaries, had no legal effect.
Section 337.7 is a specific statute. Section 341.1 is a general statute pertaining to all county officers and their deputies.
Where there is conflict or ambiguity between a specific Statute and a general Statute, the provisions of the specific section control. Great Western Accident Insurance Co. v. Martin, Co. Treas., 183 Iowa 1009, 166 N.W. 705; McKinney v. McClure, 206 Iowa 285, 220 N.W. 354; Workman v. District Court, 22 Iowa 364, 269 N.W. 27; State v. Iowa Southern Utilities, 231 Iowa 784, 2 N.W.2d 372, 4 N.W.2d 869; 50 Am.Jur., Statutes, Sec. 367, Page 371; 82 C.J.S. Statutes § 347b, P. 720.
Three Judges of the District Court of Polk County wrote strong and laudatory letters to the Sheriff as to the services of the three bailiffs, and recommended their retention. These letters are part of the record.
In Workman v. District Court, supra, this court said: '* * * it is a fundamental rule that where the general statute, if standing alone, would include the same matter as the special act, and thus conflict with it, the special act will be considered as an exception to the general statute, whether it was passed before or after such general enactment.'
In 50 Am.Jur., Statutes, supra, as a composite statement from many jurisdictions, appears the following statement: 'It is an old and familiar principle * * * that where there is in the same statute, a specific provision, and also a general one which in its most comprehensive sense would include matters embraced in the former, the particular provision must control, and the general provision must be taken to affect only such cases within its general language as are not within the provisions of the particular provision.'
After discussing a general and specific statute in Great Western Accident Insurance Co. v. Martin, supra, this court said: ...
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