State v. Roth
| Decision Date | 13 December 1913 |
| Citation | 144 N.W. 339,162 Iowa 638 |
| Parties | STATE OF IOWA, Appellant, v. LOUIS J. ROTH and JAMES M. CARL, Appellees |
| Court | Iowa Supreme Court |
Appeal from Linn District Court.--HON. W. N. TREICHLER, Judge.
SUIT brought in the name of the State, at the relation of seven qualified electors, for the removal of defendant Roth as Mayor of the City of Cedar Rapids, and Carl, as Marshal, or Chief of Police, of that city. The trial court refused to remove them, and the State appeals.
Affirmed.
George Cosson, Attorney General, and L. M. Kratz and G. P. Linville County Attorney, for the State.
Wm Chamberlain, City Solicitor, and C. F. Luberger, Assistant City Solicitor, for appellees.
No objection is made to the joinder of the two defendants in one action. It appears that in the spring of 1913 there was more or less agitation over the question of Sunday baseball in the city of Cedar Rapids. About March 28, 1913, and, as we understand it, before the league season opened, a petition signed by about fifty men and women, was presented to the mayor and commissioners of Cedar Rapids. It is as follows, omitting signatures:
To the Hon. Mayor and City Commissioners: We, the undersigned residents, citizens, and property owners of the city of Cedar Rapids, hereby respectfully request your honorable body to prevent the playing of baseball within the city limits of the city of Cedar Rapids on Sundays, on the ground that the playing of ball on Sunday, or the Sabbath, is a violation of the law, and also on the grounds that the playing of ball on Sunday causes a disturbance of the peace, and constitutes a nuisance by reason of noise, and, further, because it is detrimental to property in the neighborhood in which such game is played upon the Sabbath day. We, the undersigned, therefore respectfully ask your honorable body to take such steps as may be necessary to prevent the playing of ball on Sunday, or the Sabbath, for the reasons aforesaid.
It was presented at a meeting of the commissioners. Mr. L. M. Kratz appeared as their attorney at the meeting, and made an argument against Sunday baseball. The action was brought by him as attorney, and the trials in the district court and in this court have been conducted by him.
The action was commenced May 14, 1913, and it is alleged in the petition, among other things: That each of said officers, defendants herein, in violation of the oaths of their respective offices, and in disregard of the specific duties imposed by law upon such officers, both of said defendants, have neglected and still neglect, have refused and still refuse, to perform the duties of their respective offices, in violation of the laws of the state of Iowa and the ordinances of the said city of Cedar Rapids, in the following specific particulars, to wit: The playing of professional baseball by salaried players, and, where paid admissions were charged, have been allowed and permitted by said public officials, with their full knowledge and consent, within the limits of the said city of Cedar Rapids, Linn county, Iowa on the first day of the week, commonly called Sunday, creating a breach of the peace, disturbing private families, and against the statutes of the state of Iowa and the ordinances of the city of Cedar Rapids, and against the peace and dignity of the state. That both of said defendants have willfully neglected and still willfully neglect to perform the specific duties of their public offices, and fail and neglect to enforce the laws of the state and the ordinances of said city against such violations of the law, and both of said defendants have refused, although specially requested by more than fifty petitioners and residents of said county and city, who are most affected and disturbed by such violations of the law, and still refuse to perform the said specific duties of their respective offices as peace officers of the state of Iowa and of said city of Cedar Rapids.
Defendants answered separately. Defendant Roth, after admitting his election, and denying the charges as to his alleged neglect of duty says:
That certain persons, among others one L. M. Kratz, of the city of Cedar Rapids, Iowa and C. F. Wolff, of said city, did call upon this answering defendant and upon the council of said city of Cedar Rapids, Iowa and demand that this said defendant and the city council immediately take action to suppress the playing of baseball, within the city of Cedar Rapids upon Sunday. That thereafter, and in pursuance of the demand of said L. M. Kratz and others, including some of the complainants herein, this defendant did at once refer the matter to C. F. Luberger, assistant city solicitor of the city of Cedar Rapids, Iowa one of the regularly appointed and acting legal officials of the said city who has charge of all prosecutions arising under the city ordinances of the said city and of all matters pertaining to the police department of said city, with instructions to proceed in said matters according to law, and to commence prosecutions therefor, if, in the opinion of said C. F. Luberger, assistant city solicitor, either the ordinances of the city of Cedar Rapids, Iowa or the statutes of the state of Iowa were violated by the playing of Sunday baseball within said city. That the said C. F. Luberger did thereupon make a complete and thorough investigation of the said statutes of the state of Iowa and the ordinances of said city in reference to the playing of baseball within said city on Sunday, and did report to this defendant and the city council of said city that the playing of baseball, either amateur or professional, in the city of Cedar Rapids upon Sunday constituted no infraction of the laws of the state of Iowa or of the ordinances of the city of Cedar Rapids, Iowa.
Paragraph 4. That this defendant is not a lawyer, nor learned in the law, having for many years prior to his election as mayor of the city of Cedar Rapids followed the occupation of traveling salesman, and he is of necessity obliged in all legal matters to rely upon the advice of the legal officers of said city. That the said C. F. Luberger is a graduate of the State University of Iowa and is, as this answering defendant believes, an industrious and learned young lawyer of excellent standing at the bar. This answering defendant did further, however, request the city solicitor, William Chamberlain, to review the opinion of Mr. Luberger, and the city solicitor did thereafter report to defendant that he had done so, and that he believed said opinion to be correct, and had approved the same, and had approved Mr. Luberger's course in declining to file informations against the said ball players, charging a violation of the statutes of Iowa; that, in so submitting said matter to the lawful attorneys of said city for such action as the law required, he acted in perfect good faith and in the usual, lawful, and customary course of procedure as followed by the mayors of said city; that it has never been the custom in the city of Cedar Rapids, Iowa or in any of the other cities of the state of Iowa as far as this defendant has learned, for the mayor of said city to personally file informations or conduct prosecutions for violations of either state laws or city ordinances, but that such matters have always been referred to the legal officials of the city for action thereon, and that, in so referring the said matter to the said legal officials of said city, this defendant acted in good faith and in full reliance upon the recognized and existing custom and manner of conducting the official business of said city; that in all of said matters this defendant has acted in good faith, with the full intent and purpose to uphold the Constitutions of the United States and of the state of Iowa enforce all the laws of the state of Iowa and all the ordinances of the city of Cedar Rapids.
The answer of defendant Carl is similar, and contains the following additional allegations:
That he holds his appointment from the city council of said city, and is subject to removal by said city council at any time they may see fit, in their discretion, so to do. That one C. F. Wolff, of said city, did call upon this answering defendant, and demand that this defendant immediately take action to suppress the playing of baseball within the city of Cedar Rapids, Iowa upon Sunday. That this defendant was aware that baseball had been played upon Sunday in the city of Cedar Rapids, Iowa for many years, without any prosecutions having been instituted on account thereof, and that it had been and was being played at the time said demand was made upon this defendant in practically all of the larger cities of the state of Iowa including the city of Des Moines, the capital city of said state and the place of official residence of the Governor of said state and the Attorney General thereof, and that no prosecutions have been instituted against the playing of Sunday baseball in any of said cities by any of the officials thereof or of any of the officers of the state of Iowa. That on account thereof this answering defendant was in doubt as to whether or not the said playing of baseball upon Sunday constituted a violation of any of the laws of said city or of the state of Iowa and he thereupon reported said matters to the superintendent of the department of public safety in said city, the superior officer of this defendant, and requested the said superintendent of department of public safety to procure an opinion upon said matters from the legal officers of said city.
Paragraph 4. That within a few days thereafter the said superintendent of the department of public safety, to wit, Mr. Allen McDuff, the superior officer of this answering defendant, did report to this...
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