State ex rel. White v. Barker

Decision Date13 February 1902
Citation89 N.W. 204,116 Iowa 96
PartiesSTATE OF IOWA, ex. rel. WIN S. WHITE, Appellant, v. W. H. BARKER, G. B. HEALY, J. F. ALLISON and E. B. SPAULDING, Appellees and JOHN E. ROBSON, Intervenor, Appellant, v.
CourtIowa Supreme Court

Appeal from Woodbury District Court.--HON. GEO. W. WAKEFIELD, Judge.

QUO WARRANTO proceedings to test the validity of the appointment of defendants as a board of waterworks trustees, and of defendant Spaulding as superintendent of the waterworks system of the city of Sioux City, and to test the constitutionality of certain acts of the legislature authorizing the appointment of such officials by the district court of the county. The trial court dismissed the petitions and the plaintiff and the intervener appeal.

Reversed.

F. E Gill, Quick & Carter, and Swan, Lawrence & Swan for appellants.

R. J Chase for appellees.

OPINION

DEEMER, J.

The 26th, 27th, and 28th general assemblies passed acts creating a board of waterworks trustees for cities of the first class, and authorizing the appointment of such board by the district court of the county in which such cities are located. Vide sections 742 and 750 inclusive, of the Code. Acts 27th General Assembly, chapter 23, and Acts 28th General Assembly, chapter 25. Sioux City is a city of the first class, and has owned and operated its waterworks system since the year 1885. In the year 1898 the then mayor made application to the district court of Woodbury county for the appointment of a board of trustees for the system, under the provisions of the acts of the legislature hitherto mentioned. Pursuant to this application, the four judges of the Fourth judicial district, in which Woodbury county is situated, met in Sioux City, and appointed the defendants as trustees of the system. Defendant Spaulding refused to serve, and defendant Allison was appointed in his place. Three of the judges who participated in the conference and assisted in the selection of the trustees were and are non-residents of Woodbury county, but the other was and is a resident of Sioux City. The persons so appointed filed bond in a sum fixed by the district court, and at once assumed control of the waterworks system, entered upon the discharge of their duties, and have since been in the exclusive possession, control, and management of the system. The relator is a resident citizen and taxpayer of the city of Sioux City, and a contributor to the support of the waterworks system. Intervener was, on the third Monday of March in the year 1899, appointed by the city council of the city of Sioux City to the office of superintendent of the waterworks system. He duly qualified as such, and he and the plaintiff, before the commencement of this proceeding, each made demand on the county attorney to bring action to test the validity of the defendants' appointment, and the constitutionality of the acts under which the appointments were made. The city council also passed a resolution authorizing the commencement of the action. As the county attorney refused to bring the suit, the relator commenced it, and Robson, the superintendent appointed by the council, intervened, and asked the same relief as relator. Such, in brief, is a statement of the more important facts in the case, and the questions of law involved are so well stated by appellees' counsel that we use them as a basis for this opinion. They are as follows: "First. Has the legislature of Iowa the constitutional power to take away from the city council the control and management of the waterworks, and place such control and management in a board of trustees? Second. Assuming that the legislature has such power, are the acts of the legislature in question unconstitutional by reason of the manner of the execution of the power? In other words, do the provisions placing the power of appointment of the members of the board of trustees with the district court of Woodbury county infringe any provision of the constitution? Third. Has Win S. White such an interest in the questions involved as will enable the court to render judgment in this case upon the merits thereof?"

As third proposition involves a question of practice, it is perhaps well to settle that before proceeding with the merits of the case. Section 4316 of the Code, relating to quo warranto proceedings, reads as follows: "Sec. 4316. By Private Persons. If the county attorney, on demand, neglects or refuses to commence the same, any citizen of the state having an interest in the question may apply to the court in which the action is to be commenced, or to the judge thereof, for leave to do so, and, upon obtaining such leave may bring and prosecute the action to final judgment." It is admitted that the county attorney refused to bring the action, and the only question for decision on this branch of the case is, has the relator such an interest in the question as that he may apply to the court for leave to do so? We think he has such interest. A private citizen and taxpayer is undoubtedly interested in the duties required of the several public officials who are authorized to levy taxes. This is not a contest over an office, as were many of the cases cited in appellees' brief, but a matter of public interest in which relator has a special interest by reason of being a contributor to the funds. State v. City of Des Moines, 96 Iowa 521, 65 N.W. 818; Cochran v. McCleary, 22 Iowa 75; State v. School Dist., 29 Iowa 264; State v. Casualty Co., 77 Iowa 648, 42 N.W. 509; Ford v. Town of North Des Moines, 80 Iowa 626, 45 N.W. 1031; State v. Bailey, 7 Iowa 390; Brockman v. City of Creston, 79 Iowa 587, 44 N.W. 822. State v. City of Des Moines, supra, is conclusive of the point. As we have said, if this were a contest over the right to hold office, relator should have shown that he was elected or appointed to that office; or if it had been an action to dissolve the corporation, perhaps he could not have maintained the suit. But it is neither, and under our statute there seems to be no doubt of his right to sue. In any event, the intervener was entitled to maintain the action, because he had been appointed to the office of superintendent of the system pursuant to an ordinance adopted by the city. See, as further sustaining our conclusions on this point: Darrow v. People, 8 Colo. 417, (8 P. 661); Churchill v. Walker, 68 Ga. 681; State v. Martin, 46 Conn. 479; Taggart v. James, 73 Mich. 234, (41 N.W. 262); Com. v. Meeser, 44 Pa. 341; People v. Londoner, 13 Colo. 303, (22 P. 764).

The other points presented involve constitutional questions that to some extent at least, are new to the courts of this state. Preliminary to a discussion of the propositions involved, it is well to determine the powers, duties and functions of a municipal corporation. Judge Dillon, in his masterly work on such corporations, gives an interesting and exhaustive history of their origin, growth, and development. Within the limits of a judicial opinion it is manifestly impossible to do more than state in the most general way some well-established historical facts regarding the development of municipalities. Man has ever been gregarious by nature, and, emerging from a state of barbarism, he naturally sought the society and fellowship of his kind. Rude gatherings and somewhat formless centers of population were the result, and from these were evolved better forms of organization and higher degrees of compactness, until even in remote antiquity great cities were established, which could only have been maintained by a system of municipal government, crude and incompetent at first, but certainly by no means contemptible. The storied splendors of the prehistoric cities of the old and new world are not wholly mythical. Indeed, the general trend has been from the unorganized to the organized; from the protoplasmic to the more complex and higher and more efficient forms of life. In the early Hellenic civilization the city was the state, governed in general by the whole body of free citizens, who met and discussed all questions of policy. The history of Rome is simply an account of the greatest municipal corporation the world has ever seen. The Roman republic took its origin from the city of the Tiber, and was but a development and extension of that city; and the empire erected on its foundations was remarkable for the power, influence, and wealth of the municipalities. During the dark ages the cities preserved what was left of knowledge, culture, and art. With the dawn of the Renaissance came Christianity and the feudal system, and the castle of the baron became the unit of government. The germ of the municipal corporation in England is to be traced to the "farmer commonwealths" of the early Teutons, and each "wick," "ham," "stead," or "tun" took its name from the kinsmen who dwelt together therein. "Each, judged by witness of the kinsfolk, made laws in the assembly of its freemen, chose leaders for its governance, and the men who were to follow headman or ealderman to hundred, court, or war." Green's Short History of English People, p. 15, section 2; Id. p. 93, section 6; Angell & Ames Corp. section 21. As to the growth of English guilds and boroughs, see Dillon, Municipal Corporations c. 1; 3 Hallam Middle Ages, chapter 8, and Green's History, chapter 4. Our own towns were established in accordance with the English principles of liberty, but they generally possess greater powers of local self-government than their English prototypes; and, as said by Cooley in his work on Constitutional Limitations (page 223): "In contradistinction to those governments where powers are concentrated in one man, or in one or more bodies of men, whose supervision and active control extends to all the objects of government within the territorial...

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