State ex rel. Jones v. Sargent

• Decision Date: 11 January 1910
• Parties: STATE EX REL. JONES v. SARGENT ET AL.
• Court: Iowa Supreme Court

145 Iowa 298

124 N.W. 339

STATE EX REL. JONES

v.SARGENT ET AL.

Supreme Court of Iowa.

Jan. 11, 1910.

Appeal from District Court, Pottawattamie County; N. W. Macy, Judge.

Quo warranto proceedings to test the validity of the defendants' appointments as members of the Board of Fire and Police Commissioners of the City of Council Bluffs and to oust the defendants from their positions as such. Relator pleads that he was and is Chief of the Fire Department of the aforesaid city, and that defendants were threatening to interfere with him in the discharge of his duties. The trial court dismissed the petition, and plaintiff appeals. Affirmed.

Weaver and Evans, JJ., dissenting.

Saunders & Stuart, for appellant.

Jerry Sullivan and S. B. Wadsworth, for appellees.

DEEMER, C. J.

Relator was duly chosen chief of the fire department of the city of Council Bluffs in the year 1906, and at the time of the commencement of this suit was acting as such. On or about April 8, 1907, the then mayor of said city appointed defendants B. M. Sargent, a Republican, and Hubert Tinley and L. Zurmuehlen, Democrats, as members of the board of fire and police commissioners for the city under the provisions of Acts 32d Gen. Assem. p. 24, c. 29, and Acts 29th Gen. Assem. p. 16, c. 31, all appearing now as chapter 2A, title 5, of the Code Supplement of Iowa. It is alleged that the law under which the appointments were made is unconstitutional and void, and that the members so appointed were not qualified to serve. It is further alleged that defendants were about to interfere with plaintiff in the performance of his duties as fire chief, and that their act in so doing was without authority of law. That the exact questions presented may be fully understood, we here quote the provisions of the statutes involved:

“Sec. 679a. * * * There is hereby created and established a board of police and fire commissioners in cities of the first class and cities under special charter which, according to any state or national census heretofore or hereafter taken, are shown to have a population of more than twenty thousand.

Sec. 679b. Said board of police and fire commissioners shall consist of three members, who shall be citizens of the state of Iowa and who shall have been residents of the city in which they are appointed for more than five years next preceding their appointment; they shall, except as hereinafter specified, hold their office for six years and until their respective successors have been appointed and qualified. All vacancies in such board by death, resignation, removal, or for any other cause, shall be filled as soon as practicable in the same manner as provided for appointment. Said commissioners shall receive no compensation for their services.”

“Sec. 679d. Immediately upon the taking effect of this act the mayor of such city shall appoint said board of police and fire commissioners, who shall be confirmed by the city council, and the said commissioners so appointed shall hold their office, one of them until the first Monday in April, 1904, one of them until the first Monday in April, 1906, and one of them until the first Monday in April, 1908; and on the last Monday in March, 1904, and on the same day in each even numbered year, thereafter, the mayor shall appoint one commissioner in such city to take the place of the commissioner whose term of office expires the first Monday in April following such appointment, and the members so appointed shall serve for the term of six years following the said first Monday in April. The chairman of the board for each biennial period shall be the member whose term first expires. The said commissioners shall be selected from the two leading political parties, so that, as far as practicable, two members of the board shall be members of the dominant political party and one member of the board shall be a member of the political party next in numerical strength, as shown by the votes cast at the last state or national election. And any commissioner who during his term of office becomes a candidate for or accepts any other place of public trust or emolument, or who during the same period knowingly consents to his nomination for any office elective by the people, or fails to publicly decline the same within twenty days succeeding such nomination, shall be deemed to have thereby vacated his office, and a successor shall be appointed as provided in this act. The majority of said board shall constitute a quorum for the transaction of business. Any of said commissioners may be removed for misconduct or malfeasance in office, by the mayor of said city, with the consent and approval of a majority of the city council.”

It will be observed that the law applies only to cities having a population of more than 20,000; that the mayor shall appoint the board thereby created, which shall consist of three members, who shall be citizens of the state and residents of the city for more than five years next preceding their appointment; and that they shall be selected from the two leading political parties, so that so far as practicable two members shall be of the dominant political party and one of the next in numerical strength, as shown by the votes cast at the last state or national election. It is conceded in argument that the city of Council Bluffs had a population exceeding 20,000 when the appointments were made, that the two dominant political parties were the Republican and Democratic, and that the Republican party was the dominant one in the city as shown by the last preceding election. It also appears that, while two Democrats were named instead of two Republicans, the place was offered by the mayor to four Republicans before he named the second Democrat, and that these four men declined the appointment and refused to serve as members of the commission. We quote this admission from the record: “It is admitted of record that, at the time the fire and police commission were appointed by Donald Macrae, there were more than a thousand persons who were members of the Republican party in the city of Council Bluffs, Iowa, and all of them voters, and that prior to making said appointments that the mayor of the city of Council Bluffs requested four members of the Republican party to act as members of the fire and police commission, and that they declined the appointment and requested not to name them members of said commission. It is admitted of record that there are numerous voters in the city of Council Bluffs, Iowa, who had been residents of said city less than five years at the time the police and fire commission was appointed.”

The exact points relied upon for a reversal are so succinctly stated in the brief of appellant's counsel that we here quote therefrom as follows: “(1) Defendants were appointed in violation of law; two of them being members of the Democratic party, whereas the Republican party was, at the time of their appointment, the dominant political party. (2) Chapter 2A, title 5, of the Supplement, is void because it requires a political test as a qualification for the right to be appointed to the office of member of the board of police and fire commissioners. (3) Section 2A, title 5 of the Supplement is void because it controverts section 1, article 2, of the Constitution of Iowa, by placing a burden and penalty upon electors otherwise qualified by hindering and hampering them in their freedom of choice as such electors.” These we shall take up in order.

The general qualifications for appointment are stated in section 679b as follows: They shall be citizens of the state and residents of the city for more than five years next preceding their appointment. That defendants possessed these qualifications is admitted. But it is further provided in section 679d that “they shall be selected from the two leading political parties, so that, as far as practicable, two members of the board shall be members of the dominant political party and one member of the board shall be a member of the political party next in numerical strength as shown by the votes cast at the last state or national election.” It will be observed that this last provision does not go to the qualifications for the office. It says they shall be selected by the mayor in the manner directed, and contains a qualification to the effect that so far as practicable they shall be made up as directed. Manifestly some discretion is left in the appointing power, and primarily he is to determine whether it is practicable to have the board selected as indicated. In the absence then of proof, either direct or circumstantial, that the mayor was guilty of some fraud or collusion or was acting perversely and in open disregard of the law, his discretion cannot be interfered with by the courts. It seems that he offered the position to four Republicans before selecting the second Democrat, and evidently was endeavoring to find a proper appointee of the Republican faith. The proffer of the place was not accepted, and the mayor then turned to a second Democrat, who, we must assume, in the absence of a showing to the contrary was deemed better fitted than some Republicans who might be induced to accept. As the members appointed were each and all qualified and as there is no showing of any fraud or favoritism on the part of the mayor or any intentional disregard of the law or abuse of discretion, we are not justified in sustaining the first point made by appellant's counsel. Sanborn v. Mason City, 114 Iowa, 189, 86 N. W. 286, is not in point. If there were no qualifications upon the duty to select two from the majority and one from the minority party, we might have a different situation. But here there are certain qualifications, and a discretion is vested in the mayor with regard to this very matter.

2. Claim is made that, as the statute limits the appointees to membership of the two leading political parties, it is unconstitutional and void because it grants...