State ex rel. Fletcher v. Naumann

• Citation: 239 N.W. 93,213 Iowa 418
• Decision Date: 19 November 1931
• Docket Number: No. 41230.,41230.
• Parties: STATE EX REL. FLETCHER, ATTY. GEN., v. NAUMANN.
• Court: United States State Supreme Court of Iowa

213 Iowa 418

239 N.W. 93

STATE EX REL. FLETCHER, ATTY. GEN.,

v.NAUMANN.

No. 41230.

Supreme Court of Iowa.

Nov. 19, 1931.

Appeal from District Court, Des Moines County; A. B. Lovejoy, Judge.

This is an action in equity instituted in the name of the state of Iowa upon the relation of the Attorney General of Iowa for the removal of E. L. Naumann (defendant-appellee) from office, as a member of the board of supervisors of Des Moines county. Upon the trial on the merits of the controversy, the court dismissed the petition of plaintiff, and entered judgment in favor of the defendant, taxing the costs against the state of Iowa, including the attorneys' fee for the services of defendant's attorneys in the sum of $450. The plaintiff excepted and appeals.

Affirmed.John Fletcher, Atty. Gen., and Oral S. Swift, Asst. Atty. Gen., for appellant.

La Monte Cowles and Seerley, Clark & Hale, all of Burlington, for appellee.

DE GRAFF, J.

The instant action is predicated on section 1091, Code 1927. The provisions material to this action read as follows:

“Any * * * elective officer * * * may be removed from office by the district court for any of the following reasons:

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

2. For wilful misconduct or maladministration in office.

3. For corruption. * * *”

Section 1093, Code 1927, provides: “The petition for removal may be filed: 1. By the attorney general in all cases.”

The defendant, E. L. Naumann, was a duly elected and qualified member of the board of supervisors of Des Moines county, and was such during all times material to the acts contained in the specifications set forth in the plaintiff's petition. Before referring to the charges set forth in the ouster petition filed by the state, it may be well to define the words “willful,” “willful misconduct,” “maladministration in office,” and “corruption,” as used in section 1091, supra, as interpreted by this court in decisions heretofore made. The pertinent question before us is whether the defendant is guilty of one or more of the specifications set forth in plaintiff's petition.

Each case of this character must depend upon the specifications alleged, and the evidence offered in support thereof. As said in State ex rel. Collins v. Garretson, 207 Iowa, 627, loc. cit. 632, 223 N. W. 390, 392: “Important in this consideration is the word ‘willful,’ contained in the legislation. Not every mistake, inattention to duty, or failure to comply with the statute amounts to a ‘willful or habitual neglect or refusal to perform the duties of the office,’ or ‘willful misconduct or maladministration in office,’ or ‘corruption.’ ” State ex rel. Kirby v. Henderson, 145 Iowa, 657, 124 N. W. 767, Ann. Cas. 1912A, 1286;State ex rel. Gebrink v. Hospers, 147 Iowa, 712, 126 N. W. 818, Ann. Cas. 1912B, 754;State ex rel. Barker v. Meek, 148 Iowa, 671, 127 N. W. 1023, 1026, 31 L. R. A. (N. S.) 566, Ann. Cas. 1912C, 1075;State v. Roth, 162 Iowa, 638, 144 N. W. 339, 344, 50 L. R. A. (N. S.) 841;State ex rel. Cochran v. Zeigler, 199 Iowa, 392, 202 N. W. 94, 95.

In State ex rel. Barker v. Meek, supra, it is said: “If it be admitted, as argued, that the primary purpose of the statute is the protection of public interests, it may well be said that those interests are not imperiled by acts of a trifling or unimportant character occasioning no injury against which the personal responsibility and official bond of the incumbent afford undoubted security. Such peril arises only when his administration of the office is marked by such grave misconduct or such flagrant incompetency as demonstrates his unfitness for the position. That this is the controlling idea of the statute we ourselves have decided.”

In State v. Roth, supra, it is said: “ ‘Willfully’ has been held to mean intentionally, deliberately, with a bad or evil purpose, contrary to known duty.”

In State ex rel. Cochran v. Zeigler, supra, it is said: “The word ‘willful’ as used in this connection, was held in State v. Meek, 148 Iowa, 671, 127 N. W. 1023, 31 L. R. A. (N. S.) 566, Ann. Cas. 1912C, 1075, to imply knowledge on the part of the officer, together with a purpose to do wrong. * * *”

[1] It is manifest that the statute governing the removal of public officers is for the public benefit, and that an officer may be ousted, under the statute, when he acts willfully, and violates a statute or a duty imposed “with a bad or evil purpose, contrary to known duty.”

The statute (section 1091, Code 1927) is based upon the principle of public policy. In State ex rel. v. Canning, 206 Iowa, 1349, 221 N. W. 923, 924, a member of the board of supervisors of Monroe county was involved in an ouster proceeding. The trial court dismissed the petition, and this court sustained the judgment, except as to taxation of costs. This court, in its opinion, said: “We think, however, under the entire record, that there was a failure to establish any willful corruption or maladministration of the office of a member of the board of supervisors on the part of the appellee. * * * There can be no condonement of willful misconduct or corruption in office, even though the amount involved may appear to be inconsequential and trivial. Peculation, as a badge of misconduct and corruption, is not to be measured by its extent or grossness. There must, however, be a willful intent to do wrong or a maladministration of office to warrant a summary removal of a public officer.”

[2][3] The remedy for the removal of a public officer is a very drastic one. State ex rel. Gebrink v. Hospers, 147 Iowa, 712, 126 N. W. 818, Ann. Cas. 1912B, 754. The proceeding is penal or quasi criminal in character, and the statute must perforce be given a strict construction, and “nothing can be added thereto by inference or intendment.” Tennant v. Kuhlemeier, 142 Iowa, 241, loc. cit. 244, 120 N. W. 689, 690, 19 Ann. Cas. 1026.

[4] I. Prior to the commencement of the trial of this case, the defendant-appellee filed a motion to strike divisions, I, III, VI, and IX, which motion was sustained by the trial court, and of this ruling the plaintiff excepted and alleges error. Divisions I and VI, respectively, contained allegations that upon the particular occasions named therein the defendant traveled from Burlington, Iowa, to distances outside the county, but intrastate, in autos at no cost to himself, and that he charged mileage in the sum of 10 cents a mile against the county and received and cashed the warrant issued thereon. Divisions III and IX contain similar allegations that the defendant traveled to various points, both within and outside the county in an automobile owned by Des Moines county, and on gasoline furnished at the expense of the county, and that the defendant filed a claim thereafter for mileage, and accepted payment therefor from the county.

It is well at this point to turn to the statute governing the subject of mileage allowed to members of the board of supervisors. Section 5125, Code 1927, provides for the compensation and mileage of county supervisors as follows: “The members of the board of supervisors shall each receive five dollars per day for each day actually in session, and five dollars per day exclusive of mileage when not in session but employed on committee service, and ten cents for every mile traveled in going to and from the regular, special, and adjourned sessions thereof, and in going to and from the place of performing committee service. When the board is in continuous session, mileage for only one trip in going to and from the session shall be allowed.”

It may be pointed out that the mileage statute (section 5125) was amended subsequently to the commencement of the case at bar by chapter 12, § 6, Acts of the 44th Gen. Assem. (section 1225-d3, Code 1931).

The aforesaid amended section provides: “No public officer or employee shall be allowed either mileage or transportation expense when he is gratuitously transported by another, nor when he is transported by another public officer or employee who is entitled to mileage or transportation expense.”

It is apparent that the legislative intent in enacting the foregoing amendment was to deny an officer, who was gratuitously transported by another, the right to collect mileage. Sufficient to state that under the prior statute, section 5125, there is found nothing therein that prohibits or restricts the board of supervisors from allowing mileage for transportation gratuitously given to a member of the board by a person, official, or otherwise. The filed petition did not, in the divisions challenged by the motion to strike, state facts which constituted grounds for removal of the defendant from office.

It may be said that the mileage statute is intended to cover both compensation and expenses. If the officer's expenses are more than his mileage, it is his misfortune. Bringolf v. Polk County, 41 Iowa, 554;Harding v. Montgomery County, 55 Iowa, 41, 7 N. W. 396.

[5] Even though the defendant and the board of supervisors misconstrued the law in the allowance of the mileage in question, and although the said trips were made without actual expense to the defendant, the acts of the board or of the defendant in the premises may not be said under the record facts to have been a willful or corrupt act or such that would constitute maladministration in office. An erroneous interpretation of any law, especially by a layman public officer, is not ground for ouster of such officer. This court in State ex rel. Barker v. Meek, 148 Iowa, 671, 127 N. W. 1023, 1027, 31 L. R. A. (N. S.) 566, Ann. Cas. 1912C, 1075, said: “It is not given to any man to be absolutely perfect in the discharge of all duty. There is no man in official position so letter perfect in the law that he does not at some point by act or omission or misconstruction of the law, though with perfect integrity of motive, fall short of the strict statutory measure of his official duty.”

In State ex...