Lead Opinion
The city of Des Moines has the commission form of government as provided by Code chapter 416 (unless otherwise stated all Code references are to Code of 1946). In the spring of 1946 plaintiff, Massey, was elected and duly qualified as superintendent of public safety. It became his duty, *Page 529 with the approval of the city council, to appoint the chief of police. Code section 365.13. No such chief having been appointed, on January 17, 1947, on motion of the mayor, the council (including plaintiff) unanimously adopted this resolution known as Roll Call 2983:
"BE IT RESOLVED, by the City Council of the City of Des Moines, Iowa:
"That JOHN A. BROPHY be and he is hereby appointed Chief of Police effective immediately; and
"BE IT FURTHER RESOLVED, that in addition to all other powers and authority conferred by law or ordinances, the Chief of Police shall have power and authority, without the approval of any member of the City Council, to assign the personnel of the police department, as he deems necessary, to carry out the functions of that department. He shall have the sole authority to prescribe rules and regulations for the conduct and management of the police department, it being understood that the chief shall be accountable solely to the city council. It is further understood that the chief shall have authority to hold any police officer responsible for his assignments and report to the council infractions of the rules, or failure or refusal to obey orders."
On the same day (January 17th) the oath of office as chief of police was orally administered to Brophy who apparently then entered upon the performance of his duties. His written reiteration of the oath was filed on January 20th and three days later his bond, on plaintiff's motion, was unanimously approved and ordered filed. On January 20th plaintiff asked permission to change his vote on Roll Call 2983 from yea to nay. There were no objections and it was resolved the vote on Roll Call 2983 show the negative vote of plaintiff and the affirmative votes of the other four councilmen. A motion by the mayor to rescind Roll Call 2983 lost by the same four to one vote.
On July 16, 1947, plaintiff commenced action in the district court in certiorari against the city council and city clerk to test the legality of Roll Call 2983. The right to certiorari would have been barred in one more day. Rule 319 (all *Page 530 references to Rules are to Rules of Civil Procedure). Plaintiff's challenge to the resolution is based on the claim it conflicts with certain ordinances and statutes. Defendants filed answer to plaintiff's petition and on August 11, 1947, the cause was submitted to the trial court "upon the basis of the pleadings and the return." Defendants made a so-called offer of proof to which we will refer later. On August 12th the court made its written findings of fact and conclusions of law, followed on August 13th by judgment, sustaining the writ and annulling Roll Call 2983 as in excess of the council's jurisdiction and illegal.
I. Defendants contended unsuccessfully in the trial court and maintain here certiorari will not lie because they say they were not exercising a judicial function in the passage of Roll Call 2983. We are not inclined to reverse the judgment on this ground. Rule 306 provides:
"A writ of certiorari shall only be granted when specifically authorized by statute; or where an inferior tribunal, board or officer, exercising judicial functions, is alleged to have exceeded its, or his proper jurisdiction or otherwise acted illegally."
[1] It may be conceded that in the passage of the resolution defendants were not exercising a judicial function in the strict or technical sense in which the term is used when applied to courts. But that is not necessary. The authorities are substantially agreed and we have recognized that certiorari will lie if the act is of a quasi-judicial character. See, for example, McKeown v. Moore,
Some courts hold an inferior tribunal that is not a court exercises a judicial function only when the parties have a legal right to demand a hearing in accordance with judicial procedure. See South View Cemetery Assn. v. Hailey,
Smith v. Powell,
In Bremer County v. Walstead,
"Certiorari has several offices, among which is that of supplying defects of justice in cases obviously entitled to redress, and yet unprovided for by the ordinary forms of proceedings. 4 Encyc. Pl. Pr. 9. It is especially applicable in cases where inferior boards, officers, or tribunals exceed their authority and no method of appeal has been provided by statute."
Jewett v. Ayres, Judge,
"* * * it must be accepted as the settled doctrine that, when there is no remedy by appeal, and there has been by the inferior tribunal such act as to constitute error affecting substantial rights, or an abuse of power in the exercise of its jurisdiction, the aggrieved party may avail himself of this remedy."
We have held certiorari lies to review: vacating or extending of streets and alleys by a city council (Lerch v. Short,
Riggs v. Board,
Prior to July 4, 1943, when the Rules took effect, certiorari would lie only where there was no other plain, speedy and adequate remedy. Section 12456, Code, 1939, and corresponding sections in earlier Codes. Rule 306, quoted above, makes no such requirement and Rule 308 provides certiorari shall not be denied because plaintiff has another plain, speedy or adequate remedy. The rules thus indicate a purpose to broaden the scope of review by certiorari.
It is plain there is no right of appeal here from the challenged action. Defendants do not suggest any remedy other than certiorari that was available to plaintiff. Unless certiorari lies, it is doubtful at best if any remedy was open to plaintiff by which to test the legality of this resolution. We are reluctant to hold a litigant is without any remedy.
While plaintiff's right to the office to which he had been elected is not a property or contract right, it is at least a privilege which entitles him to the protection of the law to the end he might exercise the functions of the office until the end of his term or his resignation or removal or the forfeiture *Page 533
of the office. 42 Am. Jur., Public Officers, section 9; In re Application of Carter,
[2] One test of the judicial character of an act is whether it goes to the determination of some right the protection of which is the peculiar office of the courts. Belk's Dept. Store, Inc. v. Guilford County,
At this point we may observe that what we have said and the authorities cited in the two preceding paragraphs are conclusive against defendants' contention that plaintiff has no interest in the outcome of this controversy.
[3] There is a rule which seems clearly to entitle plaintiff to bring certiorari. 2 McQuillin Municipal Corporations, Second Ed., 505, section 595(571), states, "Certiorari may also be invoked by an incumbent of an office to review proceedings which he apprehends may be used unlawfully to disturb him in enjoyment of his office." Citing Nickerson v. Board of Commrs. of City of Wildwood, 111 N.J. Law 169,
We referred to the rule just stated, apparently with approval, in Daniels v. Newbold,
"`Certiorari is an appropriate remedy to remove out of the way of a prosecutor in possession, and therefore presumably entitled to an office, an order, resolution, or other action adverse to *Page 534 his rights, which may be unlawfully used to disturb him in the possession and enjoyment of such office or its emoluments.'"
[4] The mere appointment of an officer is sometimes said to be an administrative, not a judicial function reviewable by certiorari. Attorney General v. Mayor,
[5] II. Defendants contend the court erred in refusing to allow them to introduce evidence at the trial in explanation of the matters contained in the return to the writ. Rule 315 provides:
"In its discretion, it [court] may receive any transcript of the evidence taken in the original proceeding, and such other oral or written evidence as is explanatory of the matters contained in the return."
Upon the hearing below defendants' counsel dictated a statement of what the councilmen other than plaintiff would testify in substance if sworn and permitted to testify. The witnesses were not produced nor was any reason given for not doing so. It is not clear the court would not have permitted them to testify if they had been produced. But assuming the court refused to receive the offered evidence, defendants were not prejudiced because the substance of most of the matters offered to be proven, though in less detail, was stated in defendants' answer and not denied by plaintiff in a subsequent pleading. The new matters of fact alleged in the answer were therefore admitted. Rule 102. Further, plaintiff's counsel consented that the case be submitted on the basis of the pleadings and the return.
[6] III. Was the passage of Roll Call 2983 in excess of the council's jurisdiction or otherwise illegal? The first part of the resolution appoints a chief of police. As indicated, Code *Page 535 section 365.13 states "the superintendent of public safety, with the approval of the city council, shall appoint the chief of * * * the police department." We find no statute and the record shows no ordinance which provides the manner in which the appointment is to be made. An oral appointment if approved by the council would not be illegal.
While the manner of making the appointment here was perhaps irregular, we think it was not in excess of jurisdiction or otherwise illegal. It was unanimously agreed to by plaintiff and the council as a whole. It was the equivalent of an oral appointment by plaintiff accompanied by the approval of the council. That plaintiff apparently changed his mind and asked to change his vote three days later, after Brophy had assumed the duties of chief, is unimportant. The appointment was complete on January 17th.
[7] Certiorari does not lie to review mere irregularities or technical lack of compliance with law. Jenney v. Civil Service Comm.,
[8] IV. It does not follow from our conclusion the first part of the resolution is legal that the remainder thereof can be upheld. Rule 316 states the judgment in certiorari shall sustain the proceedings below or annul the same "wholly or in part, to the extent that they were illegal or in excess of jurisdiction * * *." The legality or illegality of either part of the resolution does not necessarily affect the remainder. The two parts are not inseparably connected. See Ebert v. Short,
[9] The resolution states "the Chief of Police shall have power and authority, without the approval of any member of the CityCouncil, to assign the personnel of the police department *Page 536 * * *." This directly conflicts with section 3, ordinance 4719 of the city, in force at the time, from which the resolution was obviously prepared. This ordinance states, in place of the words we have italicized above, "with the approval of the superintendent of the department of public safety." Except for this vital conflict, the resolution and ordinance are practically identical.
Roll Call 2983 also provides the chief of police "shall have the sole authority to prescribe rules and regulations for the conduct and management of the police department, it being understood that the chief shall be accountable solely to the city council." This is in conflict with sections 6 and 10, Ordinance 4492, in effect at the time. Section 6 states the superintendent of public safety "shall have charge of and supervision and direction over all officers and employees assigned to said department * * *." The term "supervision" is one of broad meaning. State ex rel. State Board v. Local Board,
"The superintendent of each department shall make and enforce such rules and regulations, not inconsistent with law or the ordinances or rules and regulations adopted by the city council, as may be necessary * * *."
There are other provisions of the city ordinances with which the second part of the resolution conflicts but they need not be pointed out.
These ordinances were not repealed, amended or otherwise affected by passage of the resolution. An ordinance may be repealed or amended only in the manner provided by Code section 366.2 — the passage of another ordinance. Mart Son v. City of Grinnell,
Defendants argue the resolution is authorized by certain provisions of statute. Code sections 416.44, 416.88, and 416.96 are among those cited. There is nothing in any of these statutes *Page 537 that conflicts with section 366.2 or permits an ordinance to be repealed or amended by a mere resolution. It is unnecessary to determine whether the council had the statutory power to enact by ordinance the provisions found in the second part of Roll Call 2983. No such ordinance has been adopted. Anything we might say as to the validity of such an ordinance, which may or may not be enacted, would be mere dictum.
The resolution in question is sustained insofar as it appoints the chief of police. The remainder of Roll Call 2983 is annulled. The writ of certiorari is accordingly annulled in part and sustained in part. Costs in this court to be equally divided. The judgment of the trial court is reversed in part, affirmed in part and remanded for judgment in harmony herewith. — Reversed in part; affirmed in part and remanded.
MULRONEY, C.J., and OLIVER, BLISS, HALE, and WENNERSTRUM, JJ., concur.
SMITH, J., concurs in the result and with Divisions III and IV. He does not believe certiorari the proper remedy but would base the decision on the proposition that no motion to transfer was made.
HAYS and MANTZ, JJ., dissent.
Dissenting Opinion
I am unable to agree with the rule announced in the majority opinion and respectfully dissent.
Certiorari is a special action and is, in this state, entirely statutory. By Rule 306 courts are granted the right or power to entertain certiorari only where specifically authorized by statute (which is not claimed here), or where an inferior tribunal, board or officer, exercising judicial functions, is alleged to have exceeded its jurisdiction or otherwise acted illegally. If there is not an exercise of a judicial function, then, under the plain wording of the statute, certiorari does not lie irrespective of any exceeding of jurisdiction or other illegality. See Lehigh Sewer Pipe Tile Co. v. Incorporated Town,
Whether any specific action is in the exercise of a judicial *Page 538 function is often difficult to determine, and the authorities are of little assistance. In 14 C.J.S., Certiorari, section 17b, it is said:
"The mere exercise of judgment or discretion is not the criterion by which a proceeding must be viewed to determine whether or not it is judicial in this connection," also "It is clear, for example, that it is the nature of the act to be performed, rather than of the office, board, or body which performs it, that determines whether or not it is the discharge of a judicial or a quasi-judicial function."
In 10 Am. Jur., Certiorari, section 10, is the following statement:
"A function is not judicial merely because it requires discretion, deliberation, thought, and judgement. Rather, a judicial function is performed by the exercise of discretion and judgment within that subdivision of the sovereign power which belongs to the judiciary, or, at least, which does not belong to the legislative or executive department of the government."
The action here complained of is the appointment of a chief of police and a regulation of his duties and responsibilities. In my judgment this is not a judicial or quasi-judicial function under any possible theory, and hence it follows that the trial court was without jurisdiction to maintain the instant case. The existence of a judicial function being essential for jurisdiction, section
The majority opinion holds that as to part of Roll Call 2983, it constitutes the exercise of a quasi-judicial function and hence certiorari lies. Assuming this to be true, the opinion goes far beyond this. It says:
"Unless certiorari lies, it is doubtful at best if any remedy was open to plaintiff by which to test the legality of this resolution. We are reluctant to hold a litigant is without any remedy." *Page 539
In my judgment, this in effect nullifies the provision of Rule 306 to the effect that only when in the exercise of a judicialfunction will certiorari lie. It would allow certiorari in any case where no other remedy exists without regard to the nature of the act under examination.
I would reverse the trial court and remand with direction to annul the writ.
MANTZ, J., joins in this dissent.