Hild v. Polk County

Hays, J. Plaintiff, by a suit in equity, seeks to recover the salary as a member of the Board of Supervisors of Polk County, Iowa, which had been suspended by an order of court pending the trial of an action to remove him from office on account of alleged misconduct. There was a judgment and decree for plaintiff and the defendants have appealed. The evidentiary facts are not in dispute. In 1946 appellee was re-elected as a member of the Board of Supervisors of Polk County for a three-year term commencing January 1, 1947. He qualified and served as such member until August 15, 1947. On this date, an.action entitled “State of Iowa ex rel. Carroll O. Switzer, County Attorney of Polk County, v. R. J. Hild”, being case No. 58992, Polk County, was commenced. This case asked for the removal from office of the said Hild, charging misconduct in office. Specifically, the petition alleged the indictment by the Polk County grand jury of the said Hild on charges of obtaining money by false pretenses. There were two indictments, being criminal cases Nos. 37247 and 37228, Polk County, Iowa. This petition was filed under the provisions of chapter 66, Code of 1950. On the same date, under authority granted by section 66.7, an order was entered suspending Hild from office, which was served immediately. On September 2, 1947, an original notice in the case was — 1356 — served as required by section 66.6. On August 26, 1947, one Rex L. Graber was appointed as a member of the board as provided by section 66.19. He qualified and served until November 9, 1949, at which time one Orville E. Armstrong, who had been elected at the November election to finish the term, qualified and served until the expiration thereof. Both Graber and Armstrong received full compensation for their services. Criminal cases Nos. 37247 and 37228 were transferred to Boone County for trial. Case No. 37228' was tried to a jury. There was a verdict of guilty and sentence was pronounced accordingly. On appeal to this court the judgment was reversed and the cause remanded. State v. Hild, 240 Iowa 1119, 39 N.W.2d 139. No further trial was had thereon and on April 3, 1950, cases Nos. 37247 and 37228 were dismissed by the court. Criminal ease No. 37600, Polk County, being an indictment charging Hild and others with conspiracy, and which was returned subsequent to August 15, 1947, was dismissed by the court in June 1950. In case No. 58992, being the removal action, no pleading was filed by Hild and no trial was ever had thereon. On December 17, 1949, appellee filed a motion therein to set aside the order of suspension and to dismiss the action. This motion was submitted at the time of the trial in the instant case. In June 1950, appellee filed a claim with Polk County’for the salary in question which was denied and this case was commenced on December 4,1950. In ruling upon the motion to dismiss case No. 58992 the trial court refused to set aside the order of suspension, holding it to be now moot, but did dismiss the case at appellants’ costs. Subsequent thereto the trial court entered a decree in the instant case, as above-stated. Appellants assign six propositions as a basis for reversal. Plowever, two of them present the real defenses urged to the claim and our determination thereof is determinative of this appeal. They are: (1) that payment of the salary to Graber and Armstrong constitutes a defense to appellee’s claim, and (2) appellee, in not pressing for a trial of case No. 58992 on its merits, is guilty of laches such as to bar a recovery. I. Does payment to Graber and Armstrong constitute a defense to appellee’s claim ? The trial court held that it did not and we agree. — 1357 — We are dealing with the suspension of an elected public official, pending a trial on the merits of an action to remove him from office on account of misconduct therein. The entire proceedings are governed by chapter 66, Code of 1950, which is entitled “Removal from Office”. All parties agree that in matters dealing with public office and public officials, not constitutional in their origin, the legislature is supreme and may, generally speaking, deal with them as its wisdom may dictate. As stated in City of Clinton v. Cedar Rapids & Missouri River R. Co., 24 Iowa 455, 475: “Municipal corporations owe their origin to, and derive their powers and rights wholly from, the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so it may destroy. If it may destroy, it may abridge and control.” The interpretation to be given to section 66.9 is the controlling factor upon this question. Section 66.9 provides: “An order of the district court or of a judge thereof suspending a public officer from the exercise of his office, after the filing of a petition for the removal from office of such officer, shall, from the date of such order, automatically suspend the ftirther payment to said officer of all official salary or compensation until said petition has been dismissed, or until said officer has been acquitted on any pending indictments charging misconduct in office.” (Italics ours.) At the time the decree appealed from was entered, the petition in case No. 58992 had been dismissed, as also had been the three indictments. Thus appellee is in a position to claim the benefits, if any, provided in said section. Appellants assert that nowhere in chapter 66, and specifically in section 66.9, is there any provision made for a payment to the suspended official of the withheld salary, upon the dismissal of the petition for removal or of the indictments' against the official; that the county having paid the salary to G-raber and Armstrong, the common-law rule is applicable. This rule, as contended for by appellants, is stated in annotation in 163 A. L. R. 760, 761, as follows: “With certain exceptions based upon special facts, statutes, civil service laws, or express adjudications, the majority of — 1358 — the later cases announce, recognize, or confirm the rule that payment of the salary attached to an office or position by a political or governmental entity to a de facto officer or employee who performs the functions and duties thereof is a good defense in an action or proceeding against it * * * for the equivalent amount of salary so paid.” This court recognizes this rule and has applied it on numerous occasions. The reason for the rule is that in dealing with a de facto officer the public and the governmental agencies are protected and having paid the salary to such de facto officer it would be against public policy to require payment a second time. Several Iowa cases are cited in support of this rule, among them being Brown v. Tama County, 122 Iowa 745, 98 N.W. 562, 101 Am. St. Rep. 296, Harding v. City of Des Moines, 193 Iowa 885, 188 N.W. 135, and McClinton v. Melson, 232 Iowa 543, 4 N.W.2d 247. None of the cited cases were brought under the provisions of chapter 66. The Brown ease involves an election contest and is a question of salary paid to the de facto officer and then a suit for the same by the de jure official. The Harding case involves a civil service case, and, while recovery was denied, under the above rule, statutes changing the same are now in force. Section 365.27, Code 1950. The MeClinton case involved the soldiers’ preference statute and, in the absence of any statute to the contrary, the common-law rule as announced in the Brown case was followed. We have examined all of the Iowa authorities cited by appellants and find none to be in point. We think section 66.9 specifically covers the instant case and abrogates the common-law rule, if otherwise applicable.' Chapter 66 has long been the law of this state, except as to section 66.9 thereof, and we may assume that the common-law rule was applicable. Section 66.9 was enacted as section 2, chapter 23, Acts of the Forty-fifth General Assembly. It deals with but one question, namely, the salary of a suspended official during the suspension period. Presumably, when an existing law is changed or added to some reason exists therefor and the logical answer is that the existing rule was unsatisfactory or no longer expressed a sound rule of public policy. — 1359 — Section 66.9 says * * automatically suspend the further payment * * * until * * (Italics added.) According to Webster’s New International Dictionary, Second Edition, “suspend” means “To hold in an undetermined or undecided state, awaiting fuller information * # “Until”, by the same authority, means “Up to the time that or when * * Thus, in accordance with the provisions of section 4.1(2), Code of 1950, we think the plain meaning to be given section 66.9 is that “the suspension order shall automatically hold the salary in abeyance up to the time that the petition for the removal of the official has been dismissed, or jr.p to the time that the said official .has been acquitted on any pending indictments charging misconduct in office.” In a legal sense at least, both of the above contingencies had happened at the time of the decree herein. While section 66.7, providing for the suspension of the official, and section 66.8, providing that the suspended official shall not exercise the functions of the office during the suspension, are stringent and summary in effect, yet as a matter of protection for the public they are sound. Section 66.19, providing for a temporary occupant of the office during the suspension and allowing such occupant the salary provided for the office, is necessary if the public business is to continue. But where it develops, as in the instant case, that the charges are dismissed, which in legal effect says that the official had done nothing to warrant his removal from office, it would be unreasonable to hold that, notwithstanding such dismissal, said official has, by the mere filing of the petition asking for a removal, been deprived of all that made the office of any pecuniary value. We think that by the enactment of section 66.9 the legislature intended that such official should be paid the salary of the office even though it resulted in the public paying twice for the service. II. Was appellee guilty of laches such as to bar a'recovery ? The laches, if any, is baseciupon the fact that appellee, after the commencement of case No. 58992 in August 1947 did not press for an immediate trial, and did nothing therein until in December 1949 when he filed the motion to dismiss the same. Section 66.5 provides for the filing of the petition and requires the setting forth of the charges therein. It further provides that such charges shall be deemed to be denied and requires no — 1360 — pleading upon the part of the defendant.- Thus upon the filing of the petition and the accrual of the appearance date the case is at issue and ready for trial. The burden is upon the State to establish facts to warrant and justify an order of removal. State ex rel. Fletcher v. Naumann, 213 Iowa 418, 239 N.W. 93, 81 A. L. R. 483. Appellants cite Sinclair v. Allender, 238 Iowa 212, 228, 26 N.W.2d 320, 329, and quote therefrom as follows: “Mere delay in the prosecution of an action, or lapse of time alone in asserting a claim, is not ordinarily laches. But where the demand is unduly stale, and, in addition to the lapse of time, the delay and postponement of action are unfair to the opposing party, and he has been damaged or prejudiced thereby and it would be inequitable to enforce the claim, the defense of laches should be allowed and enforced.” Appellants then state that Polk County has been prejudiced by the delay in not having a trial on the merits on case No. 58992, in that during all of the ensuing period of two years and four months it was paying the appointed officials, and if liable in the instant case it means a double payment of many thousands of dollars. Among other cases cited by appellants on this question is United States ex rel. Arant v. Lane, 249 U. S. 367, 372, 39 S. Ct. 293, 294, 63 L. Ed. 650, 652. There a superintendent of parks had been removed from office. Some twenty months later he brought mandamus to compel his reinstatement. The court held he was guilty of laches, saying, “When a public official is unlawfully removed from office * * * he should promptly take the action requisite to effectively assert his rights.”. We have no quarrel with the above pronouncements, but they are not applicable to the instant case. Appellee, as a defendant in case No. 58992, was in a purely defensive position. He had not commenced an action and was asserting no claim. At no time was he under any duty to Polk County to press for an immediate hearing on the charges. The State had commenced the action under section 66.1. The case was at issue upon the arrival of the return date, and if the plaintiff therein was content to dawdle and allow the case to drag along for over two years without a hearing thereon, and is thereby liable — 1361 — in a larger sum than it would have been but for the delay, plaintiff is responsible therefor. The old saying of “he who dances must pay the fiddler” is very apropos. There being no duty upon appellee to proceed in case No. 58992, his failure to do so cannot be said to be laches. The other propositions advanced by appellants as a basis for reversal are without merit. Finding no error in the decree of the trial court the same should be and is affirmed. — Affirmed. Bliss, Wennerstrum, Mulroney, Smith, and Thompson, JJ., concur. Smith, J., specially concurs. Garfield and Mantz, JJ., dissent.