State ex rel. Halbach v. Claussen
| Decision Date | 27 September 1933 |
| Docket Number | No. 42064.,42064. |
| Parties | STATE ex rel. HALBACH, County Attorney, v. CLAUSSEN et al. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Clinton County; C. C. Bradley, Judge.
Action in quo warranto by the county attorney of Clinton county on the relation of the state of Iowa to try the validity of a claim asserted by defendant George Claussen of a right to hold the office of Judge of the Supreme Court of the state of Iowa under an appointment by the Governor to fill the vacancy caused by the death of the late Judge E. A. Morling. In pursuance of an order of the district court, Hubert Utterback was made a party to the action. A jury was waived and a trial had to the court as in equity upon the issues joined. From a decree in favor of the defendant Claussen, Hubert Utterback appeals.
Affirmed.
E. C. Halbach, Co. Atty., of Clinton, for the State.
Ernest L. Miller and John E. Purcell, both of Clinton, for appellee Claussen.
This action was instituted by the county attorney of Clinton county under the authority and provisions of chapter 531 of the Code (section 12417 et seq.). It is provided by section 12417, which is a part of said chapter of the Code of 1931, that:
Section 12419 further provides that: “Such action may be commenced by the county attorney at his discretion, and must be so commenced when directed by the governor, the general assembly, or a court of record.”
The action was commenced in the district court of Clinton county, which is the county of the residence of the defendant Claussen. Appellant first responded to the notice served upon him in Polk county, which is the county of his residence, by filing a motion for a change of the place of trial. It is alleged in the motion that the defendant Claussen is in truth and in fact the plaintiff; that the action was commenced at his instigation and procurement and in pursuance of a demand made upon the county attorney by appellee's attorneys that such action be commenced; that the record of the proceeding showed that the method of bringing the action and each step therein was a subterfuge designed by appellee Claussen and his attorneys to obtain jurisdiction of the cause of action in Clinton county. The motion was overruled, and thereupon appellant filed answer to the petition of relator and a reply to the answer of appellee Claussen previously filed.
The facts upon the trial of the main issues were almost wholly stipulated by all of the parties. A recital of the material facts thus stipulated will make clear the nature and scope of the controversy without any extended statement at this time of the issues joined.
E. A. Morling, one of the judges of the Supreme Court of Iowa, died on October 15, 1932. Thereafter and on October 18th, appellant was placed in nomination by the state central committee of the Democratic Party as a candidate to fill the vacancy caused thereby. The nomination was thereafter certified to the secretary of state. On the same or the following day, the appellee Claussen was nominated as a candidate to fill such vacancy by the state central committee of the Republican Party and such nomination was thereafter certified to the secretary of state. Following the nomination of appellee by the Republican state central committee, he was appointed by the Governor of the State of Iowa to the vacancy caused by the death of Judge Morling. The names of the respective candidates were printed upon the ballots and voted for and against at the general election held on November 8th. The result of such election was that appellant received 472,922 votes and appellee 377,375 votes. Upon a canvass of the votes, the state board of canvassers found that appellant was duly elected to fill the vacancy caused by the death of Judge Morling and a certificate of election was issued to him. Appellant subsequently qualified by taking the oath prescribed by law and entered upon the performance of the duties of a judge of the Supreme Court.
I. We shall first dispose of the exception of appellant to the ruling of the court on the motion for a change of the place of trial. It is, of course, admitted that appellant is a resident of Polk county and appellee of Clinton county. The grounds of the motion are that the action is not prosecuted in good faith by the relator, but that same was instituted as a mere subterfuge and at the instance and procurement of Claussen and his attorneys and that appellee is in reality the plaintiff. He is designated in the pleadings as the defendant. The action was not commenced by direction of the Governor, the General Assembly, or a court of record. Section 12419 of the Code, however, confers full authority upon the county attorney to, in his discretion, prosecute the action. It appears that at a meeting of the Bar Association of Clinton County, a motion or resolution was adopted favoring the commencement of an action to adjudicate Claussen's right to hold the office as judge of the Supreme Court under and by virtue of the commission issued to him by the Governor. Claussen testified that he had nothing to do with this action, took no part therein, and that he at no time solicited or caused the attorneys now representing him to solicit the relator to commence the proceedings. The grounds of the motion are not sustained by proof. It is not claimed that if Claussen was, in fact, the defendant in the action, appellant could not be joined as a party and the action be prosecuted in Clinton county. Obviously, the motion was properly overruled.
II. The major propositions, however, relied upon by appellant for reversal, present questions largely of statutory construction.
We are dealing at this time, primarily, with elections to fill vacancies in office caused by the death, resignation, or otherwise occurring during the term for which an officer has been elected.
The provisions of the Constitution of this state in relation thereto are article 4, § 10, which is as follows: and article 11, § 6, which is as follows:
It is provided by section 504 of the Code that general elections for state, district, county, and township officers shall be held throughout the state on Tuesday next after the first Monday in November of each even-numbered year. Provision is made by statute for the nomination of candidates for office to be filled at each general election. The machinery set up for this purpose is ample.
The Legislature has also made provision for filling vacancies occurring during the term for which an officer shall have been elected. Section 1157 of the Code is as follows: “If a vacancy occurs in an elective office in a city, town, or township ten days, or a county office fifteen days, or any other office thirty days, prior to a general election, it shall be filled at such election, unless previously filled at a special election.”
Had the death of Judge Morling occurred more than thirty days prior to November 8, 1932, this controversy could not well have arisen. His death having occurred on October 15th, less than thirty days intervened until the date fixed by law for the holding of the next general election.
Much of the contention of counsel for the respective parties is based upon differences of opinion as to the proper interpretation of section 1157, Code of 1931. All parties agree that this section of the Code authorizes the filling of vacancies occurring in office thirty days prior to the next general election. It is not only conceded, but it is the contention of counsel for appellant, that if a vacancy occurs in the office of a state officer thirty days or more prior to the next ensuing general election, the duty to fill such vacancy thereat is mandatory. It is the further contention of counsel that if a vacancy occur in a state office less than thirty days, permissible authority is given to fill the vacancy at the next ensuing general election. The contention of counsel that the duty to fill the vacancy, if it occurs thirty days or more prior to the general election, at such election is mandatory, is not exactly clear. Upon whom is it mandatory? There is no power resident in any one to compel any political party to nominate candidates for office. Of course, it is assumed that political parties desirous of maintaining their existence and members thereof in office will nominate candidates for any office for which authority exists to be filled at the next general election. No mandatory duty, however, upon any person or organization to do so exists. The statute in question authorizes the filling of a vacancy in a state office occurring thirty days prior to the next ensuing general election. The statute is mandatory only in the sense that it provides in definite language when a vacancy in a state office may be filled at the next ensuing general election....
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