State v. Manning , 220 Iowa 525 ( 1935 )

I find myself unable to agree with the majority opinion and therefore respectfully dissent.

In the majority opinion they find that the defendants were not guilty of the acts charged by the state under what is known as section 1091 of the Code. With that I agree. In the majority opinion they hold that what is known as the Budget Law is constitutional. With that I agree. The majority then base their opinion, as I read it, because the record does show there were some transfers of funds, from one fund to another, without the consent of the budget director, upon section 390 of the Code, holding such violation constitutes a sufficient ground for removal from office regardless of why the transfers were made or the motives that caused the public officials to make such transfers. With this I cannot agree.

The particular section of the Code which provides for the removal of officials on the ground of their wrongful doing is section 1091, which provides as follows:

"1091. Removal by court. Any appointive or elective officer, except such as may be removed only by impeachment, holding any public office in the state or in any division or municipality thereof, may be removed from office by the district court for any of the following reasons:

"1. For wilful or habitual neglect or refusal to perform the duties of his office.

"2. For wilful misconduct or maladministration in office.

"3. For corruption.

"4. For extortion.

"5. Upon conviction of a felony.

"6. For intoxication, or upon conviction of being intoxicated."

It seem to me that sections 388 and 390 are supplementary to section 1091. These are as follows:

"388. Transfer of active funds. Upon the approval of the director, it shall be lawful to make temporary or permanent transfers of money from one fund of the municipality to another fund thereof. The certifying board or levying board, as the case may be, shall provide that money temporarily transferred shall be returned to the fund from which it was transferred within such time and upon such conditions as the director shall determine, provided that it shall not be necessary to return to the emergency fund or to any other fund no longer required, any money transferred therefrom to any other fund."

"390. Violations. Failure on the part of any public official to perform any of the duties prescribed in this and the five preceding chapters shall constitute a misdemeanor, and shall be sufficient ground for removal from office."

So far as the pleadings and evidence are concerned, the majority rest the opinion upon the alleged violation of section 388. That is to say, that wrongful acts pressed against the defendant were a violation of the duties defined in section 388, in that the defendant and his associates unlawfully transferred money from one fund to another and failed to return the same. Under the majority opinion, as I read it, it is not necessary for the state to prove moral turpitude and evil intent on the part of the defendant and his associates in regard to the doing of the substantive acts complained of. In fact, they admit there is no such showing. The majority say that the violation of section 388 alone is sufficient to oust this defendant and his associates from the offices to which they were duly elected by the people. Reading section 388 as a criminal statute, it is interesting to note that it does not contain a single prohibition, nor does it define any prohibited act. It does provide affirmatively that "upon the approval of the director, it shall be lawful to make temporary or permanent transfers of money from one fund," etc. It further provides affirmatively that the board "shall provide that money temporarily transferred shall be returned to the fund from which it was transferred" as soon as it may be. The foregoing language carries an implication that the approval of the director was a prerequisite to the transfer of the fund. This section does definitely impose a duty upon the board to return the transferred moneys to their proper fund. The failure to replenish these depleted funds is the gist of the willful neglect which is charged against the defendant officials. Section 390 should, it seems to me, be read as a part of section 388. This section purports to define a "misdemeanor". This definition does not purport to be predicated upon the breach of any duty defined in the section itself. It is not confined in its application to section 388. On the contrary, it is made to apply in blanket form to every section contained in the preceding five chapters of the Code. Without going into the question of whether a valid criminal statute may be thus enacted, and admitting the validity of sections 388 and 390 for the purpose of this case, I think we can do so only on the theory that section 390 is in the nature of an addition or amendment to section 1091. Section 1091 and its associated sections comprise the statutory law on the subject of removal from office. A proceeding for any removal from public office must proceed under section 1091 and its associated sections. The procedure followed in this case is that provided in such section.

On the question of whether the state must prove a corrupt intention as a ground for removal from office, section 1091 and its cognates have had frequent interpretation by this court. We have held uniformly that a willfully wrongful act on the part of an official means an act done "with a bad and evil purpose, contrary to known duty". Our latest case is State v. Naumann,213 Iowa 418, 239 N.W. 93, 81 A.L.R. 483. Our previous cases are there collated, and I will not include them herein. I think it is undisputably settled by our cases referred to in the Naumann case that moral turpitude is an essential element in the proof to be made by the state as a ground for removing a public official. Not only am I of the opinion that such turpitude is not proved in this case, but it seems to me that the majority in their opinion concede that. In fact, the majority hold that such turpitude need not be proved except by the implication that the court may draw from the act of statutory breach itself.

On the question of corrupt intent, a bird's eye view of the case shows that when this defendant became mayor in 1929, what may be termed the working funds of the city were overdrawn to the amount of $45,000. The situation existed, not by choice of any official, but by a practical necessity. The taxpayers were not paying their taxes, except in a very limited degree. It will be noted from section 388 that the only affirmative duty imposed was upon the "levying board" to make provision for the return of transferred funds. This means that the board was to levy taxes. They did levy the taxes. There was no default in that respect. But the taxpayers — for reasons of which this court should take judicial notice, to wit, a great economic depression — failed to pay such taxes except in a limited amount. Strictly speaking, there was no breach of the statute by the council as a "levying board". I think that no one can fairly read this record and say that under the circumstances surrounding them, the mayor and council were not doing their utmost to make the public resources serve the absolute necessities of the situation. For instance, salaries of policemen became due. The police fund was depleted. It is the claim of the defendant and his associates that money had been transferred, prior to the time they took office, from the general fund to pay the firemen; but, regardless of that fact, there was no place that these public officials could secure this money. The people of Ottumwa had chosen Mr. Manning to be their chief executive, and they were looking to him for action. It was necessary that the police force be maintained. Salaries were paid from another fund by transfer. Could they honestly believe that such a course was in the interest of the city? Can anyone doubt that the transfer was made for the best interests of the city? A sewer was broken. It lay underneath a pavement, and in order to repair it the pavement had to be cut, and after repairing it, the pavement had to be repaired. There was a pavement fund and a sewer fund. Only one of such funds had money, and they paid the bill out of that fund. The prosecution charges that the payment should have been made from the other fund. Assuming the correctness of the prosecution in such contention, did such act indicate moral turpitude or evil intent?

An examination of all of the things with which this defendant and his associates are charged, as set out in the record, convinces me that the state has failed to prove any corrupt act on the part of the defendant and his associates.

This court has heretofore stated its views upon the ousting of a public official. In the case of State v. Meek, reported in 148 Iowa, page 671, at pages 682, and 684, 127 N.W. 1023, 1027, 31 L.R.A. (N.S.) 566, Ann. Cas. 1912C, 1075, Justice Weaver, speaking for the court, said:

"There is no suggestion that appellant is not in every way competent to fill the office and discharge its duties with efficiency. So far as this case reveals, his personal character stands unimpeached, and his official record is without stain or corruption. To say that such an officer is to be removed in disgrace from the office to which he has been elected by the county in order to vindicate a law, the object of which is as we have said to `rid the community of corrupt, incapable, and unworthy officials,' is to sanction a shocking injustice. To so hold is to put it in the power of any envious or maliciously inclined person to endanger the incumbency and heap undeserved reproach upon the most capable and conscientious officer in the public service. It is not given to any man to be absolutely perfect in the discharge of all duty. There is no man in official position so letter perfect in the law that he does not at some point by act or omission or misconstruction of the law, though with perfect integrity of motive, fall short of the strict statutory measure of his official duty. That such technical violations against which an ordinary civil action in damages affords a complete remedy should be classed as impeachable offenses calling for the removal of an officer is intolerable. * * *

"The essential inquiry is whether the record shows the appellant conclusively and as a matter of law guilty of such willful misconduct in office that public interests require his removal."

And so in the case at bar there is no suggestion that the defendant — the mayor, and his associates, are not in every way competent to fill the offices to which the people of Ottumwa elected them. No one questions their personal character. The people of Ottumwa elected the defendant and his associates. They have a right under the laws of this state to elect their city officials and have such officers serve out the terms for which they were elected. I have become convinced myself that the trial court properly decided this case on the ground, if no other, that, bad faith was not shown, and I would affirm the judgment of the lower court.