*1 496
language of "riding vehicle”, the statute motor said in obedi- ence statutory fundamental rule of construction. also It does not recently adopted 344(f) violate our “In rule 13: con- struing statutes legislative the courts search for the intent as shown legislature said, what the rather than what it should or might have said.” guest
If the statute is be extended it is the function of legislature majority to do it. The should not do so under the guise of liberal construction.
Of I course would affirm. J., joins in this dissent.
Thornton, al., Charles Smith et appellees, B. E. Newell (members v. et al. of Polk County Board of Supervisors) E. and William Polk County Auditor, appellants.
McCulloch,
No. 50850. (Reported 883) in 117 N.W.2d *2 13, 1962. November Hansen, Galvin, Moines, appellants. & of Des for Wheatcraft Lorentzen, T. A. both of Des Theodore Duffleld James Moines, appellees. January 2, 1962, the Polk J. —On Sheriff of
Peterson, County following County submitted the communication to the Board: Supervisors
“To: Polk Board of Hildreth, From: Wilbur T. request ninety-day appointments respectfully
I for the * * * deputies, seventy years age: are over Charles Smith who * * * * * * 75; 74; McKinney Art Allgood 72; Howard Charles Egkild Respectfully, T. Hildreth.” 76. Wilbur ninety-day appointments. approved The Board At the expiration ninety days, the Sheriff the Board: wrote “April 3, 1962. Supervisors
To : Board of Hildreth,
From: Wilbur T. Sheriff. “This I you re-appointed advise have Charles Smith, McKinney Egkild Charles and Arthur for the Bailiffs period beginning April 1, 1962 to December 1962.
“Also for re-appointment Allgood, Deputy Howard R. in Criminal Division. The last several months we have had a burglaries series of house in the rural area which he has been assigned to investigate, along other criminal cases. He had done of investigating a lot and for him to be relieved of his duties would many particular loss of man hours these cases hamper would investigation.” approve Board refused appointments, contending *3 appointees the compulsory were under retirement because of their age.
The Board also refused to authorize the Auditor to certify payment of deputy although salaries to the and bailiffs they all continued perform their duties.
May 9, 1962, by this action was commenced the three bailiffs deputy, the for issuance of against writ of mandamus the members of Board, against the County Auditor, the ordering approval appointments of payment Sheriff’s of salaries.
The trial court ordered prayed. issuance of the writ as De- appealed. fendants quote
We will statutory provisions the in the per- Iowa Code taining questions to the involved: appointment—duties.
Section “337.7 The sheriff Bailiffs— upon shall attend the district county, court of his it and while remains in session he shall be allowed the assistance of such num- ber of judg'e may bailiffs as They the direct. shall appointed be by the sheriff regarded and shall deputy be sheriffs, for whose acts responsible.” the sheriff shall be Appointment.
Section “341.1 county auditor, Each treas- urer, recorder, sheriff, county attorney, court, clerk of the district may, approval with the of the supervisors, appoint board of one holding a assistants, respectively, not deputies or or more responsible. The of number office, he shall be whose acts be determined shall assistants, for each office and clerks deputies, together the number supervisors, and such by board of the of made resolution appointment of shall each proceedings in of such board.” record any such appointment. When of Section “341.2 Certificate supervisors, approved by the board appointment has been writing in a certifi- shall making appointment such issue officer in office of appointment, such and file the same cate of kept.” where it shall be auditor required deputy Each shall be Qualifications.
Section “341.4 having the the officer in an be fixed give a bond amount to ap- to be principal, with sureties approval of the bond his be filed approved shall proved by bond when such officer. Such shall take the deputy kept of the Each the office Auditor. on indorsed the certifi- which shall be principal, as his same oath appointment.” cate of sixty-five. A mem- age at Section “97B.45 Retirement employer later employment shall retire from the ber next day coinciding with or than the first of the month seventy, except pro- as otherwise age he the date attains following.” vided section 97B.46 may, A age seventy. member
Section “97B.46 Service after employ request employer, in the active of the of the remain seventy for employer beyond age the date he such attains period periods ap- employer from to time shall time employment from of the prove. member shall retire *4 day employer period, at end the last on the first approved coinciding of the month with following next or such date.” Appellants’ plaintiffs alleged is that are in the I. first error not wrong forum; petition for writ of mandamus does reach that alleged wrong. raise, Appellees appellants not contending did answered trial, argue in Court and can- plead question or this the District present not here the first time. it for question The appellees correct. record discloses are stipulation answer, nor in the
was not referred to in defendants’ 500 upon by touched to to be tried. was not decided
as matters
It
or
findings
law,
Court in
nor
the Trial
its
of fact and conclusions
give
any
in
extended
the Decree. We therefore cannot
it
consid
144,
433;
69
Sons,
eration here. Bull v.
&
100
N.W.
Keenan
Iowa
Roberts,
Morris,
327,
v.
208;
Weis
102
71 N.W.
Battles
v.
Iowa
Co.,
747,
247; Conkling
120
95
v.
Oil
138
Iowa
N.W.
Standard
824;
Sarbaugh,
Iowa
116
596, 600,
N.W.
In re Estate of
231
822,
324, 1
Bates,
1408,
Iowa
237
320,
N.W.2d
Bates v.
Iowa
105, 107;
24
460;
Meldrum,
777,
N.W.2d
In
243
re Disbarment of
Iowa
Also Rhein, see State ex rel. Kuhlemeier v. 149 Iowa legal questions N.W. a case analogous to ease at bar as to involved. in Mandamus was involved the case. in
Conkling Co., quoted Sarbaugh v. supra, Standard Oil case, supra, “Moreover, must be estate states: the case consid- theory ered in this court the line of the on which it in below; tried say, court and this we feel to constrained although point appellee. jus- is In not made counsel for tice court, to the trial on ground, permit if no other will not we party coming mend court, to his hold after into this seek advantage to himself grounds suggested not on the trial below.” reply argument their appellants brief they contend question
raised allegations inference from some in their This answer. If they not sufficient. to desired raise it as a defense, they say clearly should so. say opinion
Suffice it plaintiffs is our in are the correct forum. Appellants
II. contend the Sheriff employer, is not the contemplated by section 97B.46. provides 337.7 specifically
Section the Sheriff appoint shall They his responsible bailiffs. are him, responsible he is Supervisors their work. Board of have no control over them. Only the can discharge them. * * * n 341.1, supra, part: states “Each sheriff may, supervisors, board of appoint one * * * deputies responsible.” more for whose acts he shall be legislature
The intention of the the use the word
501 em person the who hired the to denominate “employer” was au responsible, person with he the ployee, to whom was beyond seventy years. period service the thority to extend establishing the Board as legislative language the no There is supra. Rhein, ex rel. Kuhlemeier v. Again see State employer. categories. 1st. plaintiffs consider two III. We will McKinney. 2d. Plaintiff Egkild and Bailiffs, plaintiffs Smith, Allgood, charge of criminal affairs. Deputy Sheriff only. pro- pertains to It 337.7, supra, IV. Section bailiffs sheriff, pro- no appointment by the and contains for their vides Supervisors. appoint- the Board of vision plaintiffs bailiffs, when made the ment of such three carefully provisions of complete. was final He followed ages. The Board’s refusal to the matter of their section 97B.46 as certify payment refusal to approve, County Auditor’s legal salaries, their had effect. specific general a statute. Section 341.1 is 337.7 is deputies. officersand to all their pertaining statute ambiguity specific there is between a Where conflict statute, provisions specific general and a section statute Martin, Co. 183 Iowa Western Accident Ins. v. control. Great McClure, 705; 285, 220 McKinney 206 Iowa 1009, 166 N.W. v. 222 Court, 364, 269 N.W. 354; Workman v. District Iowa N.W. 27; Co., rel. Weede Southern 231 Iowa State ex v. Iowa Utilities 371; 372; Jur., Statutes, 367, page 2 50 Am. section N.W.2d S., Statutes, 347b, page 82 720. C. section J. Judges of District Court of Polk wrote
Three laudatory strong and to the Sheriff as to services letters and recommended their retention. These letters three bailiffs are record. part Court, supra, pages 368, v. at 369 In Workman District “* * * Iowa,
of 222 court it is a fundamental rule this said: standing alone, general if would include statute, where the it, special act, thus same matter as the conflict exception general special to the will be considered as an act statute, passed general enact or after whether it before such ment.” composite statement Statutes, supra, Am. as a Jur., 50 *6 many
from jurisdictions, appears the “It is statement: an principle old and in the familiar that where there is specific same provision, general statute a and also which a one in comprehensive most would include matters embraced its sense in former, particular provision control, the the and the must general provision only must taken to affect such cases within general language provisions par- its not within as are the of the provision.” ticular discussing specific general
After a statute in Great Martin, supra, Western Accident Insurance Co. v. this court said: specific “The general.” controls the Y. We plaintiff Deputy will consider status the of Sheriff pertinent Allgood. Taking statutory all sections into considera- tion, legislature we arrive respec- at the intention of the as to the authority tive Sheriff the and the Board.
We have opinion, by assistance from this court’s written Judge Weaver, in Rhein, State ex rel. Kuhlemeier v. supra.
In the County Rhein the case Treasurer selected a bank for deposit county funds. The Board selected another bank. court held the bank selected the treasurer to was entitled the opinion funds. The stated Board had power the of selection under the money statute. Preservation the of the was primarily the responsibility of the treasurer.
In it the case at bar is the responsibility of the to keep peace county, in the employ deputies and to will who properly responsibility assist him. This does not in the rest Board, any nor member thereof.
In granting to Sheriff and other Officers power appoint deputies, to bailiffs and other employees it was legislature intention of the that the elected secure, Sheriff could deputies, loyal people able public sérvice. In stating such appointments subject were of the it Supervisors, Board of legislative was also the intent that common sense would be used the Board. In approving fail- or ing approve, Board reject could appointee not an on frivo- trivial, lous, arbitrary minimal, capricious grounds. For example they reject appointments could not the Sheriff’s because they did not like the color of the hair of the nor be- appointee, affiliation, age, nor unless politics, religious of his cause contrary to statute. age was matter approval on the they one withheld instant case concerned, reason, far as the Board This age.
ground of 97B.45, only section The Board used in statute. no basis had 97B.46. Section 97B.46 to section give attention refused to previous legislative enactment as part a of the as much department, of a has employer, and head some When section. seventy healthy years age, and still past who is employee an duties, legislature, performing his fully capable of usually very valu to retain the wisdom, provided a method its employee. of such able services Allgood, specialist the criminal Deputy Sheriff
As to *7 importance his work. this of On division, the outlined retention, right to as he had a recommended his the Sheriff basis rejection for was The reason section 97B.46. Board’s do under August A. arbitrary, effective. G. 0. and and not See: trivial 2, They pertain directly to mat- 1961; A. 1962. G. 0. March position taken bar, and sustain the involved the ease at ters by the trial court. issuance Writ of Man- of the trial court for
The decree thereof, Supervisors and the members damus as to the Board correct, County Auditor was and is affirmed.— and toas Affirmed. JJ., J., C. Hays,
Garfield, Thornton, Larson concur. specially. JJ., concur Thompson,
Snell part. JJ., take Stuart, Moore result but (concurring specially) concur in the J. Snell, —I in- inferences, neither fearful that conclusions or at least am may by required by opinion, drawn casual tended nor be reading. sheriffs, by “regarded deputy
Court bailiffs are statute responsible.” If bailiffs are to acts the sheriff shall be for whose is appointment and service deputy sheriffs their regarded 337.7, of Iowa. procedure. Section Code governed by the same may appoint deputies The sheriff also under In section 341.1. persons appointed responsible each instance the so are to the sheriff.
The by number of bailiffs is controlled Judge. Section Otherwise, deputies 337.7. number is controlled supervisors. board 341.1. In this statute the words the approval”, referring “with to the board of supervisors, ap- pear I they apply original twice. think appointments. to may arbitrarily board not act capriciously may but it establish standards and within appointments. those standards veto
State ex rel. Kuhlemeier v. Rhein relied on majority authority proposition is not may that an elected officer appointments make disregard of the board. that case the designated depository. treasurer designation a approved.
Subsequently, attempted the board to rescind its designation. and make its own The case holds that the board does original power not have designation. an It does not hold that power the board has no of veto. agree
I power board has no discharge deputy. power That is in principal, i.e., the sheriff. In the instant case the board attempting appointments. to terminate There authority is no for such action.
Chapter 97B of the Code system, establishes a retirement provides for payment its administration and the upon of benefits nothing retirement thereunder. It has do original with the *8 power appointment discharge. provides 97B.46 that member of system may. request employer, of the remain in service attaining after years.
the age plaintiffs of 70 iu the instant ease were by proper appointment. service sheriff, who statute responsible their principal, they asked that remain in service. authority This within his under section 97B.46. I would so limit our holding. joins J., special
Thompson, concurrence.