State ex rel. Dean v. Haubrich

Decision Date04 June 1957
Docket NumberNo. 49176,49176
PartiesSTATE of Iowa, ex rel. Robert V. DEAN, Ben Hupke, C. P. Barton, and M. P. Johnson, Appellants, v. W. J. HAUBRICH, Appellee.
CourtIowa Supreme Court

John Fletcher, Mapleton, and Kindig & Beebe, Sioux City, for appellants.

John D. Beardsley, Onawa, for appellee.

PETERSON, Justice.

This a quo warranto proceeding, challenging the right of defendant to hold the office of mayor of Mapleton. On May 24, 1950, defendant, after a plea of nolo contendere, was convicted of income tax evasion in the United States District Court, Southern District of Iowa. He was sentenced to 12 months in such institution as directed by the Attorney General of the United States, and was fined $7,500 and costs of prosecution. However, the court placed him on probation for 18 months. He had been a resident of Mapleton for many years. At the general municipal election on November 8, 1955, defendant was elected mayor of Mapleton. He received 578 write-in votes and his opponent received 238 votes. Defendant never received a Presidential pardon, although he had made application for it. On December 23, 1955, defendant received from Leo A. Hoegh, Governor of the State of Iowa, a certificate of restoration of citizenship. The term of office to which defendant was elected commenced on January 2, 1956, and he filed the required oath of office and bond to qualify as mayor. On April 20, 1956, a resolution was adopted at a special meeting of the town council of Mapleton declaring the office of mayor vacant on the theory that defendant was not eligible to be elected to the office on November 8, 1955. In the same resolution the town council elected defendant mayor of Mapleton to fill the vacancy. Defendant again qualified as provided by statute. Plaintiffs made application to the County Attorney of Monona County that he proceed with a quo warranto action to challenge the right of defendant to hold the office. The County Attorney denied the application and they commenced this action. The trial court dismissed plaintiffs' petition. They have appealed.

Appellants allege 5 assignments of error, but same are general in their nature and to a certain extent are duplications in their content. Appellants, in fact, urge two contentions. 1. The trial court did not seem to distinguish between citizenship and suffrage. 2. Only a pardon by the power having jurisdiction over the offense (the United States) can restore the rights lost by the conviction.

This is a case of first impression in Iowa. It is a case of first impression in the nation with the exception of two almost identical cases; one in Kentucky and one in Alabama. Arnett v. Stumbo, 1941, 287 Ky. 433, 153 S.W.2d 889, 135 A.L.R. 1488; Hogan v. Hartwell, 1942, 242 Ala. 646, 7 So.2d 889. We will discuss these cases later.

I. We will consider the sequence of events as to defendant's election as mayor of Mapleton. He was first elected, as previously stated, on November 8, 1955. At that time he had secured no pardon nor restoration of citizenship. He was not eligible to vote nor to hold office. Article II, Section 5, Constitution of Iowa, I.C.A. provides: 'No * * * person convicted of any infamous crime, shall be entitled to the privileges of an elector.' Any crime punishable by imprisonment in the penitentiary is an infamous crime. Flannagan v. Jepson, 177 Iowa 393, 158 N.W. 641, L.R.A.1918E, 548; Blodgett v. Clarke, 177 Iowa 575, 159 N.W. 243; 22 C.J.S. Criminal Law § 3; 14 Am.Jur. I.A. § 4. Section 363.23, Code of Iowa 1954 I.C.A. states: 'Every official elected by a municipality shall be a qualified voter thereof * * *'. Section 363.28, Code of Iowa 1954, I.C.A. provides: 'All elected municipal officers shall take office on or before noon of the second secular day of January following their election'. Defendant received his restoration of citizenship from the Governor of Iowa on December 23, 1955. This was after his election, but before the time fixed by statute for taking office. Where a disqualified voter is a candidate for an elective office the controlling time is the date of election. Defendant was not qualified when elected and his election was a nullity. Before he could be legally elected it was necessary that such disqualification be removed. State v. Huegle, 135 Iowa 100, 112 N.W. 234; McQuillin Municipal Corporation, Volume 2, § 431.

Defendant qualified on January 2, 1956, and entered upon the duties of mayor. On April 20, 1956, at a special meeting of the town council of Mapleton a resolution was passed stating defendant was not eligible to be elected as mayor, and the office was declared vacant. There was no harm in the adoption of the resolution to this effect, but it had no legal significance. Defendant's election and qualification were nullities and the office was already vacant. The previous mayor had not qualified as a hold-over. In the same resolution the council proceeded to fill the vacancy, as they now had a right to do. Section 368A.1(8) Code of Iowa 1954, I.C.A. provides: 'In all municipal corporations, except when otherwise provided by laws relating to a specific form of municipal government, the council shall: * * * Elect by ballot persons to fill vacancies in offices not filled by election by the council, and the person receiving a majority of the votes of the whole number of members shall be declared elected to fill the vacancy.' Article XI, Section 6, Constitution of Iowa provides: 'In all cases of elections to fill vacancies in office occurring before the expiration of a full term, the person so elected shall hold for the residue of the unexpired term * * *'. The Council elected defendant mayor by unanimous vote. Since his qualification, as an elector and office holder, had been restored prior to this election the election was legal. He immediately qualified as provided by statute and, therefore, became and is the legally elected mayor of Mapleton.

II. The 10th amendment to the constitution of the United States is important in our consideration of this case. Same provides: 'The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.' There are no provisions in the Constitution of the United States nor in Federal Statutes, concerning qualification of electors or office holders within the respective states. Even as to election of President, Vice-President and members of Congress, the election details are assigned to state control. The qualifications of voters and office holders within the states were reserved to the states and are exclusively under state control. In considering the certificate issued to defendant by the Governor of Iowa, called 'Restoration of Citizenship' the matter of state control of the privileges of voting and holding office is of vital importance.

III. Appellants contend the trial court did not seem to distinguish between citizenship and suffrage. Suffrage is only one element in our rights as citizens. Defendant never lost his citizenship. There is no provision in the Constitution of the United States nor in any Federal Statute which deprives a person, committing a crime such as the one committed by defendant, of his citizenship. On this point counsel for appellants and appellee agree. Appellants state in their argument: 'Conviction of an infamous crime does not deprive the criminal of his rights as citizen. He is still a citizen unless convicted of treason'. The Constitution of the State of Iowa deprives him of only some of his rights and privileges as a citizen. Voting and office holding.

On a broad basis Webster's Dictionary defines a citizen as follows: 'A member, native or naturalized, of a state or nation (as distingushed from alien).' Amendment 14 to the Constitution of the United States, Section 1 provides: 'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States * * *'. As to citizenship and voting provisions in the Constitution of Iowa, see Article II, Section 1: 'Every * * * citizen of the United States, of the age of twenty one years, who shall have been a resident of this State six months next preceding the election, and of the County in which he claims his vote sixty days, shall be entitled to vote at all elections which are now or hereafter may be authorised by law.' Because of the form of our Government and the demarcation of governmental functions as between national and state governments, we have a double or dual citizenship. 14 C.J.S. Citizens § 2, states: 'In the United States there is usually a double or dual citizenship, that is citizenship in the nation and citizenship in the state in which the particular individual resides'. 12 Am.Jur. Constitutional Law, § 451, states: 'In the Constitution of the United States the word 'citizen' is generally, if not always, used in a political sense to designate one who has the rights and privileges of a citizen of a state or of the United States. It is so used in the first section of the Fourteenth Amendment. Under this amendment it is now clear that the inhabitants of a state have a dual citizenship, one a general or national citizenship which is independent of, and separate from, their citizenship of the particular state, and the other a citizenship of the state in which they reside.' As to the citizenship of defendant it was, therefore, dual in nature. His rights as an elector and office holder were controlled by the Constitution and Statutes of the State of Iowa.

There are a multitude of citizenship rights which defendant did not lose by his crime: freedom of speech; freedom of religion; pursuit of happiness; rights of property; liberty subject only to the restrictions of his 18 month...

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    ...of the witness instead taking center stage.12 See id.In 1957, we addressed the concept of infamy in State ex rel. Dean v. Haubrich, 248 Iowa 978, 980, 83 N.W.2d 451, 452 (1957). Yet we did not forge any new ground from the path taken in Blodgett. See id. Rather, we focused on whether a pers......
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