Younker v. Susong

• Citation: 156 N.W. 24,173 Iowa 663
• Decision Date: 22 January 1916
• Docket Number: Nos. 31057,31058.,s. 31057
• Parties: YOUNKER v. SUSONG ET AL. ANDERSON v. SUSONG ET AL.
• Court: United States State Supreme Court of Iowa

173 Iowa 663

156 N.W. 24

YOUNKER

v.SUSONG ET AL.

ANDERSON

v.SUSONG ET AL.

Nos. 31057, 31058.

Supreme Court of Iowa.

Jan. 22, 1916.

Appeal from District Court, Polk County; Hubert Utterback, Judge.

Actions in equity. The two cases were submitted together, separate judgments to be entered. November 29, 1915, a special election was held in the city of Des Moines, at which election there was submitted to the voters the following question:

“Shall the proposition to establish a municipal court in the city of Des Moines, Iowa, under and by virtue of the provisions of sections 694c1 to 694c51 of the Supplemental Supplement to the Code of Iowa 1915, be adopted?”

The judges of election made return of the ballots to the city clerk, who, with the mayor, canvassed said returns and announced the vote at said election as follows: Votes cast in favor of the proposition, men 4,787, women 280, total affirmative votes 5,067. Nays: men, 4,834, women 152, total negative vote 4,986. The clerk and mayor further announced their intention and purpose to certify to the Governor, Secretary of State, and the county auditor of Polk county that a majority of the votes cast at said election were in the affirmative and that said proposition had carried. Plaintiffs allege that the election was not held according to law and is invalid. They ask an injunction against the clerk and mayor, acting as a board of canvassers, from certifying said returns; and that the mayor and commissioners of the city of Des Moines be enjoined from doing any act in providing for said court, the housing or equipping thereof, the raising by any means of public funds or the use of any public moneys for the maintenance of said court; and, further, that said defendants be enjoined from providing for an election to nominate or elect judges, clerk, or bailiff thereof, and for general equitable relief. A demurrer interposed by the defendants was sustained by the trial court, and the plaintiffs appeal. Affirmed.

Evans, C. J., and Deemer and Salinger, JJ., dissenting.

Guy A. Miller and Halloran & Starkey, all of Des Moines, for appellants.

H. W. Byers, Eskil C. Carlson, Earl M. Steer, and R. P. Thompson, all of Des Moines, for appellees.

PRESTON, J.

As stated, the election was held November 29, 1915, and soon thereafter suit was brought in the district court, and the case was there decided December 15, 1915. Appeal was taken to this court the next day and the case advanced and submitted in this court on December 17th. Counsel for either side have filed memorandum briefs, which scarcely do more than state the points and cite the statutes and the cases. Decision is asked before January 1st, and the opinion has been so written, though, because of a difference of opinion, among members of the court it may not be filed until after that date. These matters are mentioned to show that both counsel and the court have been necessarily hurried. Such haste is hardly fair to the court or counsel, and the decision under such circumstances is not always entirely satisfactory.

The provisions of the Supplement to the Code referred to in the question submitted provide for the establishment of municipal courts in cities in this state. When a proper petition is filed, it is made the duty of the mayor to submit the question to a vote of the people. The act further provides that, if the proposition is adopted, the judges of such court and the clerk and the bailiff shall be elected after proper nominations have been made; that, upon the election and qualification of the judges and other officers of such court, the police court, mayor's court, justices of the peace court, and the superior court shall be abolished, and the offices of the judge of such courts and the justices of the peace, constables, and clerk of the superior court shall likewise be abolished; that the salary of each municipal judge shall be $2,500, and the clerk and bailiff $1,200, per annum, and deputies such compensation as the council may allow, one half of the salaries of all such officers to be paid by the city and the other half by the county; each judge may appoint a shorthand reporter whose compensation shall be $6 per day. It is further provided that the city council shall provide a suitable place for holding said court, and all such other rooms and offices as shall be necessary for the transaction of the business of the court, and all other expenses not provided for in the act are to be apportioned and distributed one-half to the city and one-half to the county. There are many other provisions in the act not now material.

It should have been stated before that counsel have filed a stipulation of facts which are not referred to in the petition, but it is agreed that they shall be considered as a part of the petition or record in the case, to which the demurrer may apply.

There are five points relied upon by appellants:

(1) That the statute creating municipal courts is unconstitutional because of its provisions in abolishing justice courts, the claim being that the justice court in Iowa is a court created by the Constitution and may not be abolished by the Legislature.

(2) Because at the election voting machines were not used.

(3) Because no booths were provided.

(4) Because women were permitted to vote.

(5) Because registration was not had as required by the statute.

[1] 1. In article 11, § 1, of the Constitution of this state, under the head of “Miscellaneous,” we find the following:

“ Jurisdiction of Justice of the Peace. * * * The jurisdiction of justices of the peace shall extend to all civil cases (except cases in chancery, and cases where the question of title to real estate may arise), where the amount in controversy does not exceed one hundred dollars, and by the consent of parties may be extended to any amount not exceeding three hundred dollars.”

It is doubtless true, as contended by appellants, the citizens of the state have the right to invoke the jurisdiction of justices of the peace in the settlement of their controversies within the limits provided; that is, they may do this so long as such courts are in existence. The offices of justice of the peace were in fact created by the Legislature. Article 11, § 1, before referred to, is nothing more than a limitation upon the power of the Legislature, in creating the office of justice of the peace, to fix its jurisdiction as to the amount involved in controversy. In the absence of further restriction in the Constitution, the Legislature has authority to create any court it may desire. In article 5, § 1, of the Constitution, entitled “Judicial Department,” it is provided:

“The judicial power shall be vested in a Supreme Court, district court, and such other courts, inferior to the Supreme Court, as the General Assembly may, from time to time, establish.”

Under this, the creation and organization of courts inferior to the Supreme Court, other than the district court, is left to the discretion of the Legislature. There is no limitation upon the power of the Legislature to create any court it may desire, except that of the Supreme and district courts mentioned therein. Justices of the peace and their offices, not being of constitutional creation, may be established or abolished at the will of the Legislature. Crozier v. Lyons, 72 Iowa, 401, 34 N. W. 186;State v. Gunter, 170 Ala. 165, 54 South. 283. We think that only the Supreme Court and district court are created by the Constitution, and other courts not specifically provided for in such constitutional provisions are and may be created by the Legislature under the phrase, “and such other courts, inferior to the Supreme Court, as the General Assembly may, from time to time, establish.”

[2] The municipal court act in question should not be held unconstitutional unless it is “clearly, plainly, and palpably” so. Burlington v. Dey, 82 Iowa, 312, 48 N. W. 98, 12 L. R. A. 436, 31 Am. St. Rep. 477;State v. Creamery Co., 153 Iowa, 702, 133 N. W. 895, 42 L. R. A. (N. S.) 821; Lewis' Sutherland, Const. Construction (2d Ed.) §§ 82, 83. We are of opinion that the act is not unconstitutional.

[3] 2. It is next contended by appellants that it was incumbent upon the officials having charge of the election in question to provide the voters with the voting machines heretofore adopted and ordered for use in elections in the voting precincts of Polk county by virtue of the resolution of the board of supervisors theretofore adopted in accordance with section 1137a8 of the Code Supplement. It should be stated that no officers were voted upon or elected at the so-called election in question.

It is contended by defendants that sections 1137a7 to 1137a27 of the 1913 Supplement, providing for the use of voting machines “at all state, county, city, town, primary and township elections hereafter held in the state of Iowa,” apply only to elections of officers. Section 1137a27 provides:

“All of the provisions of the election law now in force and not inconsistent with the provisions of this act shall apply with full force to all counties, cities, and towns adopting the use of voting machines. Nothing in this act shall be construed as prohibiting the use of a separate ballot for constitutional amendments and other public measures.”

The last clause of this section expressly authorizes the use of the separate ballot in submitting “other public measures,” when the voting is by voting machine. This bill expressly comes under this head.

[4] Statutes prescribing the mode of proceeding of public officers are regarded as directory unless there is something in the statute which shows a different intent. In the instant case the electors were not to blame for the failure of the officers to provide voting machines and booths, but the mistakes, if any, were those of the officials. Under such circumstance, prejudice must be shown in order to defeat an election fairly held. Kinney v. Howard, 133 Iowa, 94, 103, 110 N. W. 282.

[5] Legislative...