State ex rel. Jones v. Sargent

Deemer, C. J. Belator 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, 190J, the then mayor of said city appointed defendants . B. M. Sargent, a [Republican, and Hubert Tinley and L. Zurmuehlen, — 300 — Democrat, as members of the board of fire and police commissioners for the city under the provisions of Acts 32 d Gen. Assem., chapter 29, and Acts 29th General Assembly, chapter 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. 679 a. . . . 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 — 301 — 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 térm 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 decliné the same within twenty days succeeding such nomination, shall be deemed to have thereby vacated his office, and a successor shall he 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 twenty thousand; that the mayor shall appoint the bonrd 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 twenty thousand when the appointments were made, that the two dominant" polit — 302 — ical 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 Repiiblican 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 suc'cinctly 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. — 303 — These we shall take - up in order. i. Municipal corporations: appointment of fire and police commissioners: discretion of mayor: statutes. 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 67 9 d 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 can not be interfered with by the courts. It seems that he offered the position to four Bepublicans before selecting the second Democrat, and evidently was endeavoring to find a proper appointee of the Bepublican 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 Bepublicans 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 — 304 — justified in sustaining the first point made by appellant’s counsel. Sanborn v. Mason City, 114 Iowa, 189, 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. constitutional law: limitation of poiitical rights. II. Claim is made that, as the statute limits tire appointees to membership of the two leading political parties, it is unconstitutional and void because it grants special privileges and immunities, because it is not uniform in its operation, and be- , . v cause it interferes with and lessens the right ^ ° or franchise conferred upon electors. The law is certainly uniform in its operation, and, if there be anything in the argument against the validity of the law, it is to be found in that part of it which limits the mayor’s choice to the members of the two leading political parties. The electors are not hampered in their choice, for they have no right to vote for members of the board. They do have free and equal opportunity to vote for the appointing power, the mayor, and there is no claim that the members of such a board can not be created by appointment at the hands of some other official. The only point, if there be any, to the last proposition, ■ is that it forces an elector,' if he would stand any show of appointment to the board, to ally himself with one or the other of the two dominant parties, thus destroying his free agency in matters political. There is no merit, as we think, in this argument. In order to secure nonpartisan action, it is very common‘for Legislatures in creating boards and commissions to provide that the members thereof shall not all be of the same political faith and to direct that they shall be selected from the dominant political parties. We have never heard it claimed before that this in any manner interfered with the privileges of electors or imposed any unconstitutional restraints — 305 — upon them. It certainly does not add any new qualifications, nor to our minds does it interpose any restraint. In no election may a voter cast his ballot for whom he will. He is of necessity limited in his choice to those who have the necessary qualifications to hold office, and these are of necessity .arbitrary • and sometimes perhaps unreasonable. True, an elector who did not ally himself with one or the other of the dominant parties could not be, appointed to membership upon the board; but there is -no such thing as a right to hold office. This is a mere privilege at all times within the control of the Legislature, save where limited by some constitutional provision. We shall presently see that there is no such limitation in our fundamental law. We shall and must 'assume that an elector, in exercising his privileges at the polls, does so from some higher motive than to place himself in line for a future appointment to' some office. If the desire to hold office predominates, then he may easily qualify himself by voting a party ticket, and, if that be the dominant idea with him, he is not deprived of much, when compelled, in order to place himself in line, to vote a party ticket. No ease has been called to our attention which holds that such a law as is now under consideration is invalid because it interferes with the freedom or rights of an elector. Appellant relies upon the expression found in Edmonds v. Banbury, 28 Iowa, 267, reading as follows: “Those whom the Constitution declares to be electors can not be disfranchised; and not one jot or tittle can lawfully be added to or taken away from the qualifications which the Constitution prescribes.” Granted that this ‘expresses a correct rule of law, which it undoubtedly does, still there is nothing in the statute-under consideration which in any manner attempts to fix the • qualifications of electors. Attorney-General v. Board, 58 Mich. 213 (24 N. W. 887, 55 Am. Rep. 675), also relied upon by appellant, is not in point for the reason that the constitutional provision is quite different — 306 — in Michigan from onr fundamental law, in that it provides, in substance, that no other oath than the one prescribed, declaration, or test shall be required as a. qualification for any office or public trust. 3. Same: . of laws. III. The point most relied upon by appellant is that the law in question sanctions or requires a political test as a qualification for office, creates special privileges, and e is in contravention of section 6 of article 1 of the Constitution, which provides, in substance, that the- General Assembly shall not grant to any citizen or class of citizens privileges or immunities which upon the same terms shall not equally belong to all citizens. That the act in question does not violate this constitutional provision is held in Shaw v. City of Marshalltown, 131 Iowa, 128, to which is appended a valuable note containing reference to the more recent cases upon the propositions involved. See, also, Goodrich v. Mitchell, 68 Kan. 765 (75 Pac. 1034, 64 L. R. A. 945, 104 Am. St. Rep. 429, 1 Am. & Eng. Ann. Cas. 288). The Shaw case is also reported with annotations in 10 L. R. A. (N. S.) 825, and it appears from these various annotations that the rules therein announced are in accord with the great weight of authority upon the question. v That is to say, it is there held that the constitutional provision relied upon does not apply to legislative enactments fixing the qualifications for municipal office. 4. Same: reasonableness: . constitutional guaranty. Pecognizing the force of this decision, appellant’s ■counsel say: “In view of the decision of this court in the Soldiers’ Preference case, we shall consider only one question in reference -to this branch of the argument, and that is our claim that the . _ classification made is arbitrary and nnreasonable; that it is not. only violative of the expressed Constitution, but is utterly repugnant to the spirit of our institutions, and, if carried to its logical and legitimate — 307 — conclusions, utterly subversive and destructive of free government.” Tbe right to hold an act of the Legislature invalid because repugnant to the spirit of our institutions and destructive of free government is a very delicate and perhaps doubtful one. Of course, the Constitution guarantees a republican form of government, but there is nothing in the Constitution or in a republican form of government which prevents the Legislature from fixing qualifications for office. This matter of declaring a statute invalid because of some implied limitations upon the power of the' Legislature was fully considered in Eckerson v. City of Des Moines, 137 Iowa, 453, and what is there held need not be repeated here. It can not be said as a matter of law that any qualification for office fixed by the Legislature is arbitrary or oppressive, or so much so as to be set aside by the courts. Wherever qualifications are fixed there is a division into classes; that is to say, there is a .class which may serve, and another which may not. Whenever qualifications are fixed, there is a discrimination, a granting of special privileges, and a denial of the right of some to hold office, and it is not for the courts to say that such provisions are arbitrary or unreasonable. The fixing of qualifications for office is a legislative and not a judicial function. Appellants rely, in this connection, upon Evansville v. State, 118 Ind. 426 (21 N. E. 267, 4 L. R. A. 93); Attorney-General v. Detroit, supra; Bowden v. Bedell, 68 N. J. Law, 151 (53 Atl. 198); Rathbone v. Wirth, 150 N. Y. 459 (45 N. E. 15, 34 L. R. A. 408) ; and Mayor v. State, 15 Md. 379 (74 Am. Dec. 572). In the Evansville case it is held the Legislature can not make a requirement of five year’s residence as a qualification for office, and that a provision to the effect that officers and patrolmen of a fire and police department should be selected equally from the two leading political parties is void. In the Shaw case, supra, we disregarded that decision, and the — 308 — court which pronounced it in a subsequent opinion in Hovey v. State, 119 Ind. 386 (21 N. E. 890), held that “it is within the authority of the Legislature, by virtue of its general power, to require that the officers of this class shall be selected from the different political parties, or that they shall be persons of peculiar skill and experience.” State v. Bedell does not decide the point, although the question is mooted and some expressions used which indicate that the New Jersey court regarded such qualifications for office as are provided in the act before us inimical to our form , of government. Mayor v. State really does not decide the question. The judges in that 'case were of the opinion that the qualifications fixed by the act could not be understood, so they expressed no opinion regarding' the matter, and upon the validity of another qualification the judges were equally divided in opinion. Attorney-General v. Board of Councilmen, 58 Mich. 213 (24 N. W. 887, 55 Am. Rep. 675), involved the appoint-, ment of election inspectors by a board to be appointed, consisting of two persons from each of the two leading political parties. The act providing therefor was held unconstitutional because of its interference with the rights of electors, in that it imposed new conditions on the right of suffrage. The constitutional limitation involved there provided that “no other oath, declaration or test should be required as a qualification for any office or public trust.” Membership of a political party was not one of the permissible tests under the Constitution. ■ I’Ve have no such constitutional provision. Rathbone v. Wirth, 150 N. Y. 459 (45 N. E. 15, 34 L. R. A. 408), gives support to appellant’s contention, but the case was decided by a bare majority of the court. On the other hand, it is very clear that a residential test is not obnoxious to any clause of our Constitution. Edmonds v. Banbury, 28 Iowa, 267. Moreover, in the absence of constitutional limitation imposing restraints upon the Legislature with reference to qualifi — 309 — cations for office, it is held in many cases that political tests or other qualifications may be used. State v. Bemis, 45 Neb. 724 (64 N. W. 348) ; State v. Smith, 35 Neb. 13 (52 N. W. 700, 16 L. R. A. 791) ; Rogers v. Council, 123 N. Y. 173 (25 N. E. 274, 9 L. R. A. 579);People v. Hoffman, 116 Ill. 587 (5 N. E. 596, 8 N. E. 788, 56 Am. Rep. 793); Patterson v. Barlow, 60 Pa. 54; Commonwealth v. Plaisted, 148 Mass. 375 (19 N. E. 224, 2 L. R. A. 142, 12 Am. St. Rep. 566). It must be remembered, in this connection, that we have no constitutional provision fixing the qualifications for municipal office. The Constitution does provide, however, that no religious test shall 'be required as a qualification, for any office of public trust. See section 4 of article 1 of the Bill of Rights. In this respect it differs from the fundamental law - of many of the other states,' which provide that no religious or political test shall be required. There is no absolute right to hold office or to be a candidate therefor; and the Legislature, in the absence of constitutional prohibition, has plenary power in fixing the qualifications therefor. The act in question is largely advisory in character, and the requirement that the commissioners shall be selected from the two dominant political parties was intended to make the board when appointed nonpartisan in character and to give, the minority representation. The office is not one created by the Constitution, but is municipal in character, and the Legislature in creating such an office, and' in delegating its power to these public corporations, has the right to say who shall exercise the functions so delegated. The office is not elective, but appointive, and exists only by reason of legislative enactment, and there is, as was said by Justice Peckham in the Rogers case, supra, no analogy between the cases of elective officers and those where the office is to be filled by appointment, and no argument which rests for its foundation — 310 — upon the constitutional provision for voting for elective officers gives any light upon the question under discussion. We need not pursue the argument further. The case is governed in principle by Shaw v. Marshalltown, supra, and other like cases. No constitutional provision is violated by the act in question, and we are constrained to hold that, as applied to municipal appointive boards, there is nothing contrary to the spirit of our institutions or inimical, to our free government in such an enactment. The judgment of the trial court is correct, and it is affirmed.