State ex rel. Collins v. Garretson

• Decision Date: 05 February 1929
• Docket Number: 39065
• Citation: 223 N.W. 390,207 Iowa 627
• Parties: STATE OF IOWA ex rel. LEO V. COLLINS, County Attorney, Appellee, v. O. A. GARRETSON, Appellant
• Court: Iowa Supreme Court

223 N.W. 390

207 Iowa 627

STATE OF IOWA ex rel. LEO V. COLLINS, County Attorney, Appellee, v. O. A. GARRETSON, Appellant

No. 39065

Supreme Court of Iowa, Des Moines

February 5, 1929

Appeal from Henry District Court.--SHERWOOD A. CLOCK, Judge.

This was an action to remove O. A. Garretson from office. He was a member of the board of supervisors. After a hearing on the merits of the controversy, the trial court ousted the defendant, and he appeals.

Affirmed.

McCoid McCoid & McCoid, for appellant.

Leo V Collins and J. V. Gray, for appellee.

KINDIG J. ALBERT, C. J., and EVANS, FAVILLE, and WAGNER, JJ., concur.

OPINION

KINDIG, J.

Basis for this proceeding is found in Section 1091 of the 1924 Code, which reads as follows:

"Any appointive or elective officer, except such as may be removed only by impeachment, holding any public office in the state or in any division or municipality thereof, may be removed from office by the district court for any of the following reasons:

"1. For willful or habitual neglect or refusal to perform the duties of his office.

"2. For willful misconduct or maladministration in office.

"3. For corruption. * * *"

The defendant-appellant was an officer duly elected, within the purview of the above and foregoing legislation. He was thus selected in the year 1922. Accordingly, he duly qualified, and served as supervisor of Henry County from January 1, 1923, until his three-year term expired, when he was again chosen for the position, and thereafter acted in that capacity until removed from office by the district court on June 11, 1927. At the commencement of the ouster proceedings, April 18, 1927, this board was composed of three members. They were appellant, Garretson, and Supervisors Barr and Scarff. Nugen formerly had been a member, but was succeeded by Scarff, January 1, 1927. Petitions for removal were filed against both appellant, Garreston, and Supervisor Barr. As a result of the hearing, Barr, as well as appellant, was removed.

This movement against these officers had its origin in the grand jury. That body ordered the appellee, as county attorney, to commence the ouster suit. Causes for appellant's removal are many. Included within them are: First, purchases of lumber in amounts aggregating more than $ 1,000 without (a) the county engineer's estimate, and (b) advertisement for bids; second, the execution of a contract for material without obtaining a bond from materialmen, as required by statute; third, purchase of paint, steel brushes, and Japan Dryer in excess of $ 1,000, for the painting of bridges, without (a) the engineer's estimate, and (b) advertisement for bids; fourth, the purchase of a Russell Motor Patrol No. 3, which cost $ 2,330, without (a) the engineer's estimate, and (b) advertisement for bids; fifth, the decoration and painting of the courthouse, at a cost greater than $ 2,470, without advertisement for bids; and sixth, the presentation of claims for committee work when the board was in session, and for board work when that body was adjourned. Other allegations are made against the appellant, which we do not consider necessary to discuss in this opinion.

More than one lumber company was dealt with in the manner and way above set forth. It appears that an attempt was made by appellant to avoid the law through the splitting of the various bills for merchandise, so and in order that each portion thereof amounted to less than $ 1,000. As a matter of fact, such transaction consisted of one, and not several, agreements. Denial of these allegations is made by appellant, and explanation offered for him in reference to each charge made by appellee.

Before proceeding further with the discussion, it is well to here quote the sections of the statute purported to have been violated by appellant in the purchase of the materials aforesaid. These are the following sections of the 1924 Code, respectively:

"4647. All culvert and bridge construction, grading, drainage and repair work, or materials therefor, of which the engineer's estimated cost shall exceed one thousand dollars shall be advertised and let at a public letting. The board may reject all bids, in which event it may readvertise, or may let the work privately at a cost not exceeding the lowest bid received, or build by day labor, subject to the approval of the state highway commission."

"4648. All culverts and bridge construction, tile and tiling, and repair work or materials therefor, of which the engineer's estimated cost shall be one thousand dollars or less, may be advertised and let at a public letting, or may be let privately at a cost not to exceed the engineer's estimate, or may be built by day labor."

"4650. Repair work shall be known as work not designated by the highway engineer, all road construction work costing not in excess of sixty dollars per mile, work of a temporary character, or of immediate necessity, and work necessary to maintain finished roads completed under this chapter."

Also Section 5131 of the same Code, requiring advertisements for bids before repairing a building, is material.

Appellee's case, so far as the purchases of materials are concerned, is predicated upon the proposition that the facts and circumstances in the record sustain the claim that appellant in his official capacity acted willfully and corruptly, in violation of the legislation last above quoted.

A review of the evidence at this point is necessary. The witness Nugen testified that he, together with the former supervisors Barr and appellant, purchased from the Gaynor Lumber Company, through its agent, three carloads of lumber, aggregating $ 2,925.73 in value. All three carloads were bought at the same time. Mention was made of the fact, during the transaction, that the board could not buy more than $ 1,000 worth at a time. Arrangement was made to split up the order, so it would appear that each represented a separate and distinct transaction, although, in truth and in fact, it was all one deal. No record of this action of the board's was kept. Apparently appellant and his co-supervisor did not desire the public to know about the affair. Griffith, the county engineer, said that he made no estimate for the lumber. DeWitt, county auditor, stated that there were no advertisements for bids. Similar testimony was made by Nugen, Griffith, and DeWitt concerning separate transactions with the Standard Bridge Company and the Hoenshel Lumber Company.

Furthermore, oils and gasoline were obtained from the Sunshine and Primary Oil Companies for a consideration exceeding $ 2,753.19, when there was no engineer's estimate, and no advertisement for bids. Moreover, this contract was entered into without a bond from the Sunshine Oil Company. Likewise, an agreement was made with the Standard Oil Company for certain products, without an engineer's estimate. In addition to the foregoing, the deposed supervisor Barr testified, on cross-examination, that they were to get a half cent per gallon rebate from the driver of the gasoline wagon. Notation of this was not made in the contract, and nothing appeared to apprise the county of its rights in that respect. There is no explanation as to who received this discount. Apparently the county did not. Obviously, the board entered into a contract for the decoration of the courthouse without advertisement for bids, contrary to the statute. Compensation, according to the evidence, was asked by appellant for board work when that body was not in session. So, too, payment was asked by him for committee work when the board was in session. Of course, he could not receive pay for committee work when performing his duties at the session. We have not attempted here to set out all the evidence and other facts and circumstances tending to prove the charges made. An outline only is possible in an opinion.

Appellant, in explanation and contradiction of the foregoing, denied practically every statement and allegation. While he, in effect, admits that certain charges were made for committee work when the board was in session, he suggests that a definite record was not kept concerning the adjournment and reconvening of that body, and what appeared to be an inconsistency in fact was not one. Continuing, he explains that sometimes he served one-half day on the board, and charged for that, and then the balance of the day he spent in committee work, and charged separately for that. Suggestion also is made by him to the effect that, while certain charges were entered for Sunday services, yet such was clearly an error, and was intended for the Saturday before, or the Monday following. Corroboration to some extent is furnished in this regard by the ousted supervisor Barr. When explaining the apparent illegality relating to the purchase of materials without complying with the statute, appellant suggests that the oil, for instance, was bought on an option contract, and that the county was not required to accept the entire allotment. Commenting upon the State's accusation regarding the lumber contracts, appellant, the witness Barr, and the Gaynor Lumber Company representative assert the transaction was not one, but three, and that no illegal splitting occurred. On another occasion, appellant and Barr say that one of the lumber companies made an error in shipment, in that more lumber was sent than was authorized. However, all was paid for at the same time. Such is the evidence which was presented to the district court, and that tribunal found in favor of appellee.

Insistence is also made by appellant that the supervisor Nugen and the engineer who testified against him are prejudiced and...