State ex rel. Maley v. Civic Action Committee
| Decision Date | 29 July 1947 |
| Docket Number | 47040. |
| Citation | 28 N.W.2d 467,238 Iowa 851 |
| Parties | STATE ex rel. MALEY v. CIVIC ACTION COMMITTEE et al. |
| Court | Iowa Supreme Court |
Walter F. Maley, relator.
Bump & Bump, of Des Moines, for appellants.
Welch & Welch, of Logan, for appellee.
On July 12 1945, B. J. Powers, Paul W. Walters and Chester L. Morain, as incorporators, filed with the secretary of state articles of incorporation of the Civic Action Committee and a certificate was issued authorizing it to transact business as a corporation not for profit under chapter 394, Code 1939, chapter 504, Code 1946. On August 6, 1945, this action was commenced under Rules 299, 300 () in the name of the State of Iowa upon the relation of a private individual Walter F. Maley, to test the legality of the corporation's existence. Pursuant to Rule 299, trial was 'by equitable proceedings.' The district court held the character of the corporation was not such as was authorized by section 8582, Code 1939, section 504.1, Code 1946, dissolved the corporation and prohibited its officers from acting as such. The corporation and its officers have appealed.
I. At the outset, defendants contend the attorney general is the only one who may bring this action. We do not agree. The matter of who may bring this action is governed by Rule 300 which provides:
'(a) The county attorney of the county where the action lies may bring it in his discretion, and must do so when directed by the governor, general assembly or the supreme or district court * * *.
It is conceded Walter F. Maley is a citizen of the state, a lawyer in Des Moines where defendant corporation has its principal place of business and its three incorporators, who are also its officers and trustees, live. It is admitted Maley made demand on the county attorney of Polk county, in which Des Moines is situated, to bring the action and he refused. The attorney general likewise refused. Maley then applied to the district court of Polk county for leave to bring the action. Such leave was granted and Maley filed bond for costs in an amount fixed by the court, with sureties approved by the clerk. Under the plain provisions of Rule 300, Maley was entitled to bring the action and prosecute it to completion.
Our conclusion finds support in the provision of Rule 304(b): 'If the action fails, the court may adjudge the costs against any private individual who brought it; * * *.'
Rule 300 superseded sections 12419, 12420, Code 1939, which were quite similar to the rule. Section 12420 authorized 'any citizen of the state having an interest in the question' to bring the action upon obtaining leave of court or a judge thereof, following demand on, and neglect or refusal of, the county attorney to act. We have held this statutory provision authorized private individuals to bring such an action as this to test the corporate right of street railways to operate in a city. State v. Des Moines City Railway Co., 135 Iowa 694, 715, 716, 109 N.W. 867. Also that a private relator might bring such a proceeding to test the legality of the incorporation of a school district. State v. Alexander, 129 Iowa 538, 540, 105 N.W. 1021. And that a private individual might maintain such an action to test the right of a city to exercise corporate authority over territory added to it by legislative act. State ex rel. West v. City of Des Moines, 96 Iowa 521, 525, 65 N.W. 818, 31 L.R.A. 186, 59 Am.St.Rep. 381.
Defendants suggested in oral argument that Rule 300(b) permits an action in the nature of quo warranto by a private relator only where the right to a public office is involved, under Rule 299(b), and not to determine the questions at issue here, under Rules 299(a), (c), (d) and (e). Statutes in some states, like the ancient statute 9 Anne, ch. 20, make some such distinction as defendants suggest. 44 Am.Jur. 146, section 77. But Rule 300 does not. It does not limit the right of a private relator in bringing such an action to cases where a public office is involved. Nothing in the rule lends support to defendants' argument.
The statutory provision which Rule 300 supersedes at one time made such a distinction as defendants ask us to read into the present rule. Section 3735, Revision of 1860, provided: 'If the district attorney, on demand, neglect or refuse to file an information, any citizen of the state claiming any public office which is usurped or unlawfully exercised by another, may do so, and he may prosecute the same in his own name, to final judgment in all other respects as provided herein.' (Italics supplied.)
However, in section 3348, Code of 1873, the words we have italicized were omitted and the statute appeared substantially as found in section 12420, Code 1939, heretofore summarized, which Rule 300 directly supersedes. No principle of statutory construction permits us to limit Rule 300 to correspond substantially to section 3735, Revision of 1860, which the legislature changed.
Our conclusion does not conflict with our decision in State ex rel. Hutt v. Anthes Force Oil Co., 237 Iowa 722, 22 N.W.2d 324, upon which defendants rely. That was a suit to cancel shares of stock and dissolve a corporation organized for profit principally because of claimed violations of sections 8412 to 8416, Code 1939, sections 492.5 to 492.9, Code 1946. We held the remedy provided by sections 8417, 8418, Code 1939, sections 492.10, 492.11, Code 1946, for such claimed violations, viz., a suit by the attorney general in the name of the state, was exclusive. The special statutory provisions we held were controlling in the Anthes case have no application to the present controversy which is governed by Rules 299, 300.
We may add that we in effect held in State v. Winneshiek Co-Op Burial Ass'n, 234 Iowa 1196, 15 N.W.2d 367, that Rule 300 should not be given a narrow and technical construction and, in the concurring opinion of Justice Smith joined in by six other justices, observed that a private citizen may under the rule act as relator, by leave of court and upon furnishing security for costs. The question upon which Justice Bliss dissented in the Winneshiek Co-op case is not raised here.
See also as bearing on this question, State ex rel. Weede v. Iowa Southern Utilities Co., 231 Iowa 784, 815, 2 N.W.2d 372, 389, where we held a private relator might bring suit under section 8438, Code 1939, section 495.6, Code 1946, against a foreign public utility corporation.
II. Upon the merits, the controlling question is whether defendant corporation was organized for a purpose contemplated by the statutes governing nonprofit corporations. The nature and purpose of the corporation and thus stated in the articles:
'* * * to promote, obtain and maintain honest city, county and state government, and among the items of business to be transacted by it, but not excluding others, shall be the following:
'1. To aid in the creation of public confidence in all honest and efficient city, county or state public officials.
'2. To see that due and proper public recognition is given to efficient and honest enforcement of the laws of the State of Iowa.
'3. To investigate allegations of dishonesty in public office and to collect evidence concerning the same; to investigate and collect evidence of alleged pay-offs; to offer rewards for information leading to the arrest and conviction of persons either offering pay-offs, or accepting pay-offs, or granting or promising protection to persons engaged in illegal activities. To sue and be sued.
'4. To gather and disseminate information among the members of the corporation and others as to the activities of law enforcing officers.
Section 8582, Code 1939, section 504.1, Code 1946, states:
'Except as may be otherwise specifically provided in this chapter, any three or more persons of full age, a majority of whom shall be citizens of the state, may incorporate themselves for the establishment of churches, colleges, seminaries, lyceums, libraries, fraternal lodges or societies, temperance societies, trades unions or other labor organizations, commercial clubs, associations of business men, agricultural societies, farmers granges, or organizations of a benevolent, charitable, scientific, political, athletic, military, or religious character. * * *' (Italics supplied.)
Defendant corporation contends and we hold it is a corporation of a political character within the contemplation of this statute.
'Political' is a word of broad meaning. Webster's New International Dictionary, Second Edition, defines it as '1. Of or pertaining to * * * the conduct of government, * * *; of or pertaining to, or incidental to, the exercise of the functions vested in those charged with the conduct of government; relating to the management of affairs of state; as political theories. * * *
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