State ex rel. Cochran v. Zeigler
| Decision Date | 10 February 1925 |
| Docket Number | No. 36688.,36688. |
| Citation | 202 N.W. 94,199 Iowa 392 |
| Parties | STATE EX REL. COCHRAN ET AL. v. ZEIGLER. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Jefferson County; W. M. Walker, Judge.
Action in equity to remove the mayor and the city council of the city of Fairfield from office. A trial to the court resulted in the dismissal of the petition and the taxation of the costs to relators. The plaintiff and relators appeal. Modified and affirmed.Ralph H. Munro, of Fairfield, for appellants.
J. P. Starr and Leo D. Thoma, both of Fairfield, for appellee.
This is an action in equity, under the provisions of chapter 8, tit. 6, of the Supplement to the Code, for the removal from office of the mayor and city council of the city of Fairfield. The action was prosecuted in the court below by five qualified electors of the city of Fairfield, in the name of the state. Complaints were filed separately against each of the defendants. A trial was had to the court and judgment entered, dismissing the petition and taxing the costs to the relators.
This opinion will deal only with the case of Sanford Zeigler, the mayor of said city. The charge against him is willful misconduct and maladministration in office.
[1] A motion filed in the office of the clerk of this court to dismiss the appeal was submitted with the case, and will first have our attention.
Section 1258d, 1913 Supplement to the Code (section 1099 of the Code of 1924), makes it the duty of the county attorney to appear and prosecute proceedings instituted for the removal of city and county officers, other than himself. The county attorney did appear in the court below, but does not appear in this court.
The ground of the motion to dismiss is that the state of Iowa has not been made a party to the appeal for the reason that the county attorney has not appeared to prosecute the same, nor appointed a deputy to act for him. The further ground urged is that the relators have no right to appeal from the judgment of the court below.
It appears from the abstract that the appeal was taken and perfected in the name of the state and the relators. There is a further showing by affidavit that the county attorney consented to and tacitly, at least, authorized counsel for appellants to perfect and prosecute the appeal in this court.
The grounds of the motion to dismiss are exceedingly technical, and do not present grounds for a dismissal. The motion to dismiss the appeal is therefore overruled.
[2] II. Section 879q, Code Supplement 1913, prohibits any officer, including members of the city council, from being interested directly or indirectly in any contract or job of work, or material, or the profits thereof, or services to be furnished or performed for the city or town. Section 5673, Code of 1924.
Section 1258c, 1913 Supplement, provides as follows:
* * *”
The petition charges appellee with having knowingly and willfully signed numerous warrants drawn on the funds of the city of Fairfield, and payable to one L. J. Nelson, a member of the city council, for goods, wares, and merchandise, and services furnished to the city, and also with having signed a warrant on the general fund drawn to one Ivan Ipson, knowing that same was intended for the use and benefit of said Nelson, and with knowingly and willfully causing a claim for $1.50 for grass seed, in his own favor, to be filed with the city clerk and paid out of the funds of said city.
Other appeals pending in this court involve the alleged willful misconduct and maladministration in office of the members of the city council, but we shall not, in this opinion, go into detail as to the charges against such officers.
The evidence, without conflict, shows that appellee, as mayor, signed all of the warrants described in the petition asking his removal, and that a claim in his favor for grass seed was filed against the city and paid by warrant drawn upon its funds. The petition does not, in terms, charge corruption in any other form than as stated above, nor is it alleged that appellee and the city council conspired or confederated together for the purpose of serving each other in the matter of furnishing supplies or labor for the city.
Other members of the council than Nelson were directly or indirectly interested in transactions had by them with the city.
A contract for public printing was let by the city council to a corporation in which appellee held one share of stock, and in which a member of the council was interested. The evidence does not disclose nor does counsel claim that any of the goods, wares, or merchandise furnished to the city or labor performed therefor, or contracts let for the public printing, was furnished, performed, or let at an unreasonable profit, or that the price was in excess of that for which other dealers would have charged therefor, or that the performed labor could have been obtained at a lower cost, but, on the contrary, in many instances it appears that the transactions complained of were, in some instances, much less than those prevailing upon the market. For example, sewer tile was furnished at a greatly reduced cost, and the bid for public printing filed by the corporation in which appellee was a stockholder was very much lower than the other competitive bids. Nevertheless, the transactions charged were in violation of section 879q of the 1913 Supplement to the Code.
The mayor and members of the city council were forbidden to enter into any contract or job of work, or to furnish material to the city under any contract in which they were interested directly or indirectly. No action will lie in favor of a member of the city council against the city to recover upon transactions therewith which are forbidden by the statute. Bay v. Davidson, 133 Iowa, 688, 111 N. W. 25, 9 L. R. A. (N. S.) 1014, 119 Am. St. Rep. 650;James v. City of...
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