Van Der Zee v. Means

The record in this case shows a persistent and determined effort on the part of the public utility company in Iowa City to defeat the efforts of the people to secure a municipally-owned electric light and power plant.

The light and power company's franchise expired in January 1934. A special election was held on October 11, 1932, at which the renewal of the company's franchise was defeated by a vote of 2,700 to 900. Thereafter on April 17, 1934, another special election was held for the purpose of voting on a $917,000 bond issue to establish a municipally-owned plant. This issue was carried by a majority of the voters.

Pursuant to that election an ordinance was introduced for the establishment of a plant. This ordinance was laid on the table by a majority of the then constituted membership of the city council. That council also returned to the federal government a P.W.A. contract for a grant of over $400,000 to aid in the construction of the plant. Another city election was held in March 1935, at which the municipal ownership candidates were elected by a majority. This council then proceeded to carry out the provisions of the election for a municipally-owned plant and adopted the ordinance which had been laid on the table in 1934, providing for the establishment of the plant. Thereupon the city again made arrangements for receiving a federal grant of $413,000 to aid in the construction of the plant.

In May 1935 the city council asked the power company to sell its distribution system to the city. The company refused to do that, but offered to sell its generating plant in Coralville and its distribution system to the city for $1,125,000, an amount far in excess of the bond issue authorized by the people.

On the rejection of its offer, the company commenced a systematic campaign against municipal ownership, and secured a temporary injunction restraining the city from proceeding with the establishment of the plant as authorized by the people. Upon the rejection of the offer, and after securing a temporary injunction, the company offered to the city and all consumers an immediate but conditional reduction in rates, and a scheme of paying its consumers the difference between the reduced rates and the rates then in operation, upon condition however that the city council abandon its plan for a municipal plant. This offer was refused.

Thereupon the light and power company in the month of August, and every month thereafter until the next city election, sent monthly notices to each of its consumers showing how much money had been impounded for each consumer, promising to pay this amount to them in cash upon the abandonment of the plans for a municipal light and power plant by the city council. The light company also publicly advertised by hand bills and in the local newspapers that the impounded fund would be paid to their consumers if and when the city council abandoned plans for a municipal plant. The record shows that the impounded fund accumulated to such an extent that it amounted to over $72,000 immediately preceding the city election in February 1937.

The promise of such reward for the abandonment of the plan was given such wide publicity and sent to all consumers of electricity in Iowa City so repeatedly before the election of 1937 that it must have been known by the appellees herein.

In March preceding the election a convention was arranged for and held in Iowa City by friends of the light and power company. At this convention a ticket, opposed to municipal ownership and designated as the Citizens Non-partisan Ticket, was selected. The appellees herein were at that time and by that convention nominated as candidates for the city council in the city election to be held March 29, 1937. At this convention a platform was adopted and published wherein it was stated, inter alia, that "weare opposed to the building of a municipal light plant in IowaCity."

The appellees in this case were the persons nominated by the so-called Citizens Non-partisan Ticket and made their campaign upon the platform adopted by the convention as being opposed to the building of an electric light plant in Iowa City. A bitter campaign was waged between the forces favoring a municipally-owned plant and those opposed thereto, at the end of which appellees, the candidates on the Citizens Non-partisan Ticket, were elected.

The record shows without dispute that all consumers of electricity in Iowa City were repeatedly promised a cash refund if the candidates on the municipal ownership ticket were defeated and the plan for municipal ownership abandoned. This action is brought to contest the election under section 5629 of the Code of 1935, which provides:

"The election of any person to a city or town office may be contested on the same grounds and in the same manner provided for contesting elections to county offices."

Section 981 of the Code of 1935 relating to contesting the election of county officers provides, among other things, as follows:

"The election of any person to any county office * * * may be contested by any person eligible to such office; * * * and the grounds therefor shall be as follows:

"4. That the incumbent has given or offered to any elector, * * * any bribe, or reward in money, property, or thing of value, for the purpose of procuring his election."

In Dishon v. Smith, 10 Iowa 212, bribery was defined as:

"* * * the giving (and perhaps offering) to another, anything of value or any valuable service, intended to influence him in the discharge of a legal duty. * * * Our statute * * * declares (section 339) that the election of any person may be contested when the incumbent has given or offered any elector, etc., any bribe or reward in money or property for the purpose of procuring his election."

The provision of the statute in force at that time is substantially similar to paragraph 4 of section 981 of the Code of 1935. It is therefore clear, and it is practically conceded by the record, that if the offer of money, service, or reward had been made directly by the appellees, who were elected members of the city council at the election in question, their election would be invalid. Appellees contend, however, that the offer of reward was not made by them directly and that they are therefore not responsible for the offers made by the light and power company.

Appellants contend, however, that while the offer was not made directly by appellees, the record shows without dispute that they were running on a platform opposed to municipal ownership and thereby indirectly ratified the promises made by later adopting the legislation necessary to enable the electors to secure the money promised them by the light and power company. The platform of the convention, under whose auspices and upon whose ticket appellees were running, was an implied promise that they would do all in their power to defeat municipal ownership in Iowa City; and, as contended by appellants, "this promise was a political party declaration, ratified by its candidates that if elected they would not build a municipal plant, and this act of forbearance would necessarily result in the payment of the money promised by the light and power company in the event of the defeat of municipal ownership in Iowa City."

Under the special circumstances existing in Iowa City, appellees impliedly promised the electors some thing of real value, because the light company's promise was followed up by appellees' action, as councilmen, in repealing the ordinance providing for a municipal light and power plant almost immediately after the election. This action of the council was something of real value. While the promise of either the electric light company to make a refund, or the promise of appellees to defeat municipal ownership in Iowa City, made by the appellees before the election, might not separately, in and of themselves, have amounted to a complete offer of reward, it does follow that when linked together in the manner shown by the evidence in this case it amounted to an implied offer of reward as an inducement for their election.

The record shows that soon after the appellees were elected they repealed the ordinance providing for the establishment of a municipal light and power plant; and immediately thereafter the light and power company refunded to its consumers over $90,000 which it had impounded for them under its promise made about a year and a half before the election.

That such action amounted to an offer of reward as an inducement for their election, see: Carrothers v. Russell,53 Iowa 346, 5 N.W. 499, 36 Am. Rep. 222; Glover v. State,109 Ind. 391, 10 N.E. 282; Robinson v. United States, 8 Cir.,32 F.2d 505, 66 A.L.R. 468; Commonwealth v. Root, 96 Ky. 533,29 S.W. 351; Chicago, M. St. P.R. Co. v. Shea, 67 Iowa 728,25 N.W. 901, 904; State v. Purdy, 36 Wis. 213, 224, 17 Am. Rep. 485.

In Carrothers v. Russell, 53 Iowa 346, 5 N.W. 499, 36 Am. Rep. 222, this court said [page 349, of 53 Iowa, page 501 of 5 N.W.]:

"`It contains a distinct proposition to the electors that if they will elect the particular candidate he will donate all fees received from the office, in excess of a certain sum, to the taxpayers of the county by paying the same into the county treasury. Such a proposition introduced into elections would be a mischievous element very nearly allied to bribery, and if the incumbent (Mr. Russell) indorsed the resolution and pledged himself publicly and privately that, if elected to the office, he would carry out the proposition, then as I have before explained he is, under the law, disqualified from holding the office; and this is so without regard to whether there were few or many votes changed thereby. * * *'

"It is true that in that case [State v. Purdy, 36 Wis. 224] the court did not go further than to hold that the votes secured by the relator by reason of his offer should be rejected. If an offer like the one in question, when acted upon by a voter, becomes to him a bribe, it is, when not acted upon, the offer of a bribe; and under our statute the offering of a bribe by a candidate disqualifies him for the office. In our opinion the offer made by the incumbent was the offer of a bribe, and that by such offer he became disqualified for the office. * * *

"`It is of the highest importance that the purity of the ballot box shall be maintained. And there can be no difference in principle between the sale of an office for a valuable consideration, and the disposing of it to the person who will perform its duties for the lowest compensation. The same objection lies to both. It is inconsistent with sound public policy and tends to corruption. It diverts the attention of the electors from the personal merits of the candidates to the price paid or the cheapness of the offer. If it were allowed it is evident that there would be the greatest danger of offices being filled, not by those best qualified, but by those whose purses enabled them to obtain it.' * * *

"`We fully recognize the validity of the objection to the sale of offices, whether viewed in a moral, political, or legal aspect. It is inconsistent with sound policy. It tends to corruption. It diverts the attention of the electors from the personal merits of the candidates, to the price to be paid for the office. It leads to the election of incompetent and unworthy officers, and on their part to extortion and fraudulent practices to procure a remuneration for the price paid. Nor can we discover a difference in principle between the sale of an office and the disposing of it to the person who will perform its duties for the lowest compensation. In our opinion the same objection lies to both.'"

In State v. Elting, 29 Kan. 397, the court, speaking through Justice Brewer, later of the United States Supreme Court, said:

"When a candidate gives an elector personally money or property there is a direct attempt to influence his vote by pecuniary considerations. The expectation is that such vote will be controlled, not by the elector's judgment of the fitness of the candidate for the office, but by the pecuniary benefit he has received. In other words, it is money and not judgment which directs the ballot; and so the election turns not on considerations of fitness or public good, but of private gain. Let such be tolerated, and elections will be simply the measure of the size of the candidates' purses. In the closing and degenerate days of Rome's august empire, preceding its immediate downfall, the imperial purple was sold at public auction to the highest bidder. Equally base and equally significant of present decay and impending downfall would be the toleration of the private purchase of electoral votes. That which is wrong when done directly, is equally wrong when done indirectly. Salaries are paid by taxation, and when a candidate offers to take less than the stated salary, he offers to reduce pro tanto the amount of taxes which each individual must pay. If the candidate went to each elector and offered to pay one dollar of his taxes, that clearly would be direct bribery; and when he offers to take such a salary as will reduce the tax upon each taxpayer one dollar, he is indirectly making the same offer of pecuniary gain to the voter; so that those cases rest upon the simple proposition that the election of a candidate for office cannot be secured by personal bribery offered directly or indirectly to the voter. * * *

"A further question may arise when the offer of the candidate carries with it no pecuniary benefit to the voter. As, for instance, should a candidate for a county office offer to give if elected a portion of his salary for the erection of a public fountain; or, if a candidate for a state office should offer if elected to endow a chair in some college: here it may be said that the voter is in no way influenced by consideration of personal gain. He receives no money in hand, his taxes will not be reduced, and he may in no manner be pecuniarily benefited by the donation. This presents a case going still beyond those which have been decided, and yet very probably the same decision should control such a case, and for this reason: wrong considerations are thrown into the scale to influence the vote of the elector. The theory of popular government is that the most worthy should hold the offices. Personal fitness — and in that is included moral character, intellectual ability, social standing, habits of life, and political convictions — is the single test which the law will recognize. That which throws other considerations into the scale, and to that extent tends to weaken the power of personal fitness, should not be tolerated. It tends to turn away the thought of the voter from the one question which should be paramount in his mind when he deposits his ballot. It is in spirit at least bribery, more insidious, and therefore more dangerous, than the grosser form of directly offering money to the voter."

McCrary's Treatise on the American Law of Elections, 3d Ed., section 298, says:

"In England and in many states of the union, it is expressly provided by law that bribery in procuring an office creates a disability to holders. Such is the case especially in Iowa, in Kansas, in Oregon. * * *"

It goes without saying that the action of the city council in abandoning the municipal ownership plant in Iowa City made it possible for the electric light and power company to fulfill its offer to refund to the consumers of light in Iowa City funds amounting to over $90,000, if the municipal ownership plant in Iowa City was abandoned. Such abandonment could only be accomplished by the action of the newly elected city council. The offer was made good by the payment of this large amount to the electors of Iowa City in consideration of the election of appellees, who were candidates upon the ticket opposed to municipal ownership. The election was tainted with fraud and carried by and through the action of both the light and power company and the candidates of the Citizens Non-partisan Ticket.

As a general rule an election which is materially influenced by bribery is void. Except in some jurisdictions the election of a particular person to an office may be annulled on account of bribery committed in his behalf without his knowledge. 20 C.J. 186, 187; Adkins v. Phipps, 159 Ky. 349, 167 S.W. 134; Scholl v. Bell, 125 Ky. 750, 102 S.W. 248.

Ordinarily a limit is placed upon the expenditure that may be incurred by or on behalf of a candidate, and while he may bar himself from office by violating such provision, it seems clear that expenditures of money for a candidate without his knowledgeor consent should not work a forfeiture of his office. 9 R.C.L. 1189, Note 1; State v. Bland, 144 Mo. 534, 46 S.W. 440, 41 L.R.A. 297.

It may be, as shown by the foregoing cases, that where the expenditure of money is made in behalf of certain candidates without their knowledge, there should be no forfeiture; but if the money is spent with their knowledge and implied consent, a different rule should apply.

In the case of Adkins v. Phipps, 159 Ky. 349, 167 S.W. 134, the Supreme Court of Kentucky, in ruling upon a somewhat similar question, said [page 135]:

"There was no attempt to prove that Adkins or his party used any money, or bribed any person to vote for him, or that any person voted for him, who, for any cause, had no right to do so. Phipps seems to rest his defense on the sole ground that he was not a party to the bribery in his behalf, and had no knowledge of it, and his counsel by brief submit the case to this court to determine whether the proof shows that 8 of the voters above named were bribed to vote for Phipps, and, if we so determine, we are asked to set aside the election as to this office, and declare there was no election. * * * The fact that Phipps had no knowledge of the bribery committed in his behalf does not legitimize the vote so cast and counted for him. It is a plain question as to whether he received a majority of the legal votes cast. The bribed votes were illegal, whether he knew of them or not. As is stated in the case of Butler v. Roberson, 158 Ky. 101,164 S.W. 340:

"`Nor is it necessary that the improper use of money should be traced directly to the candidates for office. The position or personality or connection with the election of the person using the money is of minor importance compared with the fact of its use.'"

Under the theory of this case, it does seem to me that if offers of reward were made to a sufficient number of voters to indicate that they were influenced by such offers, then the votes cast for the persons in whose behalf the offers were made should be declared illegal.

The record shows that notices of refund were sent out to about 5,500 consumers in Iowa City. The record also indicates that there are not that many electors in the city. It is therefore fair to presume that a sufficient number of electors were influenced by the promise of the payment to them of a refund on their electric rates upon condition that the plan for a municipal plant be abandoned by the city, and this could be done only by the successful candidates on the ticket opposed to municipal ownership.

It is no doubt true that many of the electors opposed to municipal ownership might not have been influenced by the offer of reward made by the light and power company, but, in view of the fact that the electors at an election for a renewal thereof refused to renew the light and power company's franchise, and in further view of the fact that the proposition for a municipal light and power plant had once been carried by a majority of the electors, it is fair to assume that enough of the electors voting at the election for councilmen were sufficiently influenced by the offers of reward made by the utility company to affect the result of that election.

Under all the facts and circumstances in this case it seems to me that the entire election was tainted by fraud and should be declared invalid. The judgment of the lower court should therefore be reversed, and I respectfully dissent from the majority opinion.