189 Iowa 123 | Iowa | 1920
About the middle of April, 1919, J. J. Miller disposed of his dental practice and office equipment to one McFate, with the understanding that' he would quit the practice, June 10th thereafter, and not resume it in Manning while the buyer remained there, without his consent. Miller was serving a two-year term as treasurer of the plaintiff district, beginning July 1, 1918. He appeared at a meeting of the directors in the fore part of June, 1919, saying to the board that he wanted to resign; but acquiesced
“I had hoped that this matter could have been arranged and a transfer of the office made without a contest for my successor, but, from all appearances, this will be out of the question. I regret exceedingly that this could not be done without any feeling, as the people of Manning have been very kind to me, and I dislike to do anything to create feeling or strife among my friends. Under all of the circumstances, it may be best to permit the people to fill this vacancy at the election in March.”
A motion was adopted:
“That, the office of school treasurer being vacated on account of the removal of the treasurer from the county, that the board meet in adjourned meeting on Thursday evening, July 10th, at 8 o’clock, for the purpose of electing his successor, on' condition that all members are present.”
At the time so fixed, E. D. Sutherland was elected, and thereafter qualified as treasurer. On - the next day, the secretary of the board of directors notified Miller that the vacancy caused by his removal to that place (Denison) had been filled by the appointment of Sutherland, and that he had been “instructed to notify you to turn the funds and all other property of the district over to him as soon as possible.” This Miller did not do; and, on August 16, 1919, an action in mandamus was brought, in the district court of Crawford County, to compel Miller, who then lived at Denison, to deliver all books, funds, and other property of the district. Miller answered, admitting that he retained the same, but averred that the funds of the district were on deposit with the Iowa State Savings Bank of Manning, and warrants paid upon presentation. In a separate division of the answer, he denied that the remedy by manda
“Let it be agreed that the Crawford County case * * * shall be and is hereby, by stipulation and order of the court, consolidated with the Carroll County case * * * but that this consolidation shall be without prejudice to the claims of either party as to their rights involved in the litigation, or to the residence of the defendant, Miller, and that it shall be without prejudice to any claim of fact or law made by either party in the pleadings in either case.”
This was acquiesced in by counsel for the school district, and attorney for Miller proceeded:
“I am trying to protect my own interest, you see, because I have a plea in there that the action to compel Miller to turn over the stuff is one which the court may not entertain in the form in which it is brought, and, of course, I desire to have it understood that, in arranging for this consolidation as a matter of convenience, that that point is not waived.
“The Court: Well, it will be so regarded and understood.”
It was then agreed that there should be but one decree. It is plain from this recital that the parties understood that none of the issues raised in the several pleadings should be lost by the consolidation, and, regardless of what may be the rule where consolidation is ordered, under Section 36áá of the Code it was competent for the parties, with the approval of the court, to stipulate the conditions on which causes of action which might not have been joined shall be tried together, and we shall take up the several issues as seems most convenient.
II. Section 1266 of the Code declares that:
*128 “Every civil office shall become vacant upon the happening of either of the following events * * *.
2. Schools and School Districts : vacancy in office of treasurer. “3. The incumbent ceasing to be a resident of the state, district, county, township, city, town or ward by or for which he was elected, or appointed, or in which the duties of his office are to be exercised.” That the office of school treasurer is a civil office is not questioned, but it is contended by counsel for appellant that the
■statute quoted does not apply to school officers. That section, in so far as it relates to such officers, is like Section 429 of the Code of 1851; and it is argued that, as the board of education was then in control of the school system, and was authorized to legislate with reference thereto, such offices were not contemplated in the last-cited section, or in the like section re-enacted in subsequent Codes. Article 9 of the Constitution of 1857 placed “the educational interests of the state, including common schools and other educational institutions * * * under the management of a board of education” (Section 1); and upon that board (Section 8) was conferred the “power and authority to legislate and make all needful rules and regulations in relation to common schools,” the power being reserved in the legislature, however, to alter, amend, or repeal any of the acts, rules, or regulations so adopted. The board, however (Section 10), was denied the power to levy taxes or make appropriations of money. It was required (Section 12) to “provide for the education of all the youths of the state, through a system of common schools, and such schools shall be organized and kept in each school district at least three months in each year.” The existing school district was expressly récognized and the laws relating to its organization and officers continued in force by virtue of Section 2 of Article 12, declaring that:
“All laws now in force, and not inconsistent with this Constitution, shall remain in force until they shall expire or be repealed.”
There was no inconsistency in Chapters 69 and 70 of the
“Should a vacancy occur in the board, they may fill the same by appointment unless it is deemed expedient to call a special meeting of the district for the purpose.”
As the treasurer ivas eco officio a director of the board, this included the power to fill the vacancy in the office of treasurer. Section 2771 of the Code, 1897, provides for filling vacancies in school offices, as does the statute quoted; and, as Section 429 of the Code of 1851 was the only statute declaring the event which created a vacancy, as is Section 1266 of the Code of 1897, we are of opinion that these last-named statutes should he construed as including all that their language imports, “every civil office.” The history of the legislation on which appellant relies, furnishes no ground on which to base a holding to the contrary. Though Section 1272 of the Code, appearing in the same chapter as Section 1266, provides for filling about every vacancy other than that of school offices, we are of opinion that the latter section should be accorded the meaning its language purports, and that the words “every civil office” should he held to include school offices, and that the office of school treas
“We are about to leave Manning; I thought I would come in and see the board in regard to my resignation.”
Another member of the, board remembered that he said that “we all knew that he was about to leave, or something to that effect;” and still another member, that he “gave as the reason that he ivas going to leave Manning; said he was going to Denison.” This witness also related that Miller had told him that:
“He was going to move to Denison, and that he would see me, and that he would be back to finish my work * * * that he had sold out, and was going to leave Manning.”
His brother, by Avhom he was employed at Denison, swore that he Avas engaged for no definite time; that his brother had refused to go into partnership with him, because, as he said, he wished to be free to go, just as he liked. When he moved into his father’s residence, his goods Avere stored in the building where he first moved. Dr. Sinn, still another member of the school board, recalled that, A\rhen Miller attended the meeting, he had said “he would have to resign, because he was going to move to Denison.”
On the other hand, it appears that Miller disposed of his dental practice because of wishing not to be confined in the office; that he voted on the road question in Manning, in the fore part of September, 1919. He was an assistant
The evidence leaves little or no doubt as to Miller's purpose in leaving. He does not say that he intended to return. He disposed of everything connected with his profession as a dentist, and, by agreement, obviated engaging therein again. He disposed of his residence, and shipped everything he had, save his bank stock, to Denison. He told the members of the school board he intended to leave Manning, and, about the same time, published the following in a' local newspaper:
“To My Friends and Patrons: Having sold my dental practice and am moving to Denison, Iowa, I take this means of extending my thanks and appreciation for the business and hearty co-operation that I have received during the sixteen years that I have practiced my profession here in Manning. It is with a feeling of regret that I am to leave the good old home town, not only because it is the town in which I have lived for nearly thirty years, and where I spent my boyhood days, and where I graduated from the high school, but because of the many friendships formed*133 and'the hearty‘support received while in practice here. Denison is not very many miles away, and I hope to see you all occasionally. Again thanking you one and all for the patronage and business that you have given me, I herewith bid you all farewell, if I do not get to see you personally. With the best of wishes, Dr. J. J. Miller.”
Would anyone sound such a farewell who was not intending to sever his relations of neighbor and resident forever? We entertain no doubt that his departure was with the design of leaving permanently, and that, upon his departure, the office of treasurer became vacant.. This being so, the petition filed in the district court of Carroll County was rightly dismissed, and the temporary restraining order dissolved.
Our only inquiry, then, is whether Sutherland had a prima-facie right to the office. There is no controversy but that Miller, who had been the treasurer, then resided and was employed in Denison, the county seat of an adjoining county, about 22 miles from Manning. Owing to this, Sutherland had been appointed to the office of treasurer in his stead, and had qualified. To authorize this, the board of directors was not required to wait for the adjudication of the existence of a vacancy. The fact of vacancy was enough to warrant the board in taking action; and, had there been no one in possession or claiming the office, the appointee would have been entitled to the books and property incident thereto. The rule is thus laid down in State ex rel. Leal v. Jones, 19 Ind. 356:
“Where it appears, prima facie, that acts or events have occurred, subjecting an office to a judicial declaration of being vacant, the authority authorized to fill such vacancy, supposing the office to be vacant, may proceed, before procuring a judicial declaration of the vacancy, and appoint or elect, according to the forms of law, a person to fill such office; but if, when such person attempts to take possession of the office, he is resisted by the previous incumbent, he will be compelled to try the right, and oust such incumbent, or fail to oust him, in some*135 mode prescribed by law. If such elected or appointed person finds the office, in fact, vacant, and can take possession, uncontested by the former incumbent, he may do so, and, so long as he remains in such possession, he will be an officer de facto; and, should the former incumbent never appear to contest his right, he will be regarded as having been an officer de facto and de jure; but, should such former incumbent appear, after possession has been taken against him, the burden of proceeding to oust the then actual incumbent will fall upon him; and if, in such proceeding, it is made to appear that facts had occurred before the appointment or election justifying a judicial declaration of a vacancy, it will be then declared to have existed, and the election or appointment will be held to have been valid.”
See, also, Dew v. Judges of Sweet Springs, 3 Hen. & M. (Va.) 1 (3 Am. Dec. 639); notes to State v. Dunn, (Ala.) 12 Am. Dec. 25; People v. Olds, 3 Cal. 167 (58 Am. Dec. 398); McKannay v. Horton, (Cal.) 13 L. R. A. (N. S.) 661. We are inclined to entertain 'the view expressed in State ex rel. Leal v. Jones, supra. The right to the office depends, in such a case, on whether there was, in fact, a vacancy, rather than on the appointment by the board of directors to fill the alleged vacancy; for such appointment would be invalid, should it appear that no vacancy, in fact, existed. In determining, then, whether there was a vacancy, the court necessarily passes on the issue as to which of the two persons is entitled to the office, and this may not be determined in an action in mandamus.
“When the two causes were consolidated, a new action ivas formed, which was .distinct in its identity from both of them. Neither of the claims alleged by plaintiff remained to be tried, after the consolidation, as a separate issue, but a new issue was presented, which included all of them. When the parties consented to the consolidation, they, in effect, agreed that the tAvo separate actions should be discontinued, and a new and distinct action should be created, in Avhich should be included and litigated all of the questions presented by the pleadings in both of the former actions; and the power and jurisdiction of the courts with reference to this new action were the same as though it had been brought in the manner in which actions are ordinarily instituted.”
The same rule obtains in several states, owing to statutory provisions, in suits of an equitable nature. See Peterson v. Dillon, 27 Wash. 78, 85 (67 Pac. 397); Eastern Wis. R. & L. Co. v. Hackett, 135 Wis. 464, 472 (115 N. W. 376). In other states, however, where consolidation of causes pending in equity is effected, it amounts practically to no more than a trial of the different suits at the same time, and separate decrees are entered. Handley v. Sprinkle, 31 Mont. 57 (77 Pac. 296, 3 A. & E. Ann. Cas. 531); Holmes v. United States Fire Ins. Co., 142 Fed. 863. This result was obviated by the understanding that there should be a single record and a single decree, though the parties specifically agreed that “this consolidation shall be without prejudice to the claims of either party as to their rights involved in the litigation, or to the residence of the defendant