Gamel v. Veterans Memorial Auditorium Commission

272 N.W.2d 472, 1978 Iowa Sup. LEXIS 930

• Court: Supreme Court of Iowa
• Decided: December 20, 1978
• Docket: 2-61231
• Status: Published

Opinions

ALLBEE, Justice.

This case presents the second assault on the constitutionality of § 37.10, The Code, which provides for the qualifications and selection of commissioners for military veterans memorial buildings and monuments. The results of the first are recorded in Vietnam Veterans Against the War v. Veterans Mem. Aud. Comm’n, 211 N.W.2d 333 (Iowa 1973). In that ease six members of this court decided that the plaintiffs lacked standing. The dissent found standing, reached the merits and found part of § 37.10 unconstitutional.

Chapter 37 of the Code deals with the erection and maintenance of buildings and monuments memorializing veterans of the armed services. It provides, in § 37.9, that when a building or monument is to be built, a commission shall be appointed to have .charge of the construction of the edifice and to manage and control it when completed. Maintenance is accomplished with public funds. § 37.8. Those funds are disbursed only on the written order of the commissioners. § 37.16. The section under attack, § 37.10, is the provision by which commissioners are selected and appointed.¹ In its first paragraph, it requires that commissioners be honorably discharged veterans. Its second paragraph establishes a procedure whereby eight named veterans organizations select five commissioners. The names of those selected are forwarded to, in this case, the city council of Des Moines which “shall by resolution appoint them as such commissioners.” No veteran or member of the general public who is not a member of one of the eight named organizations has any voice in the selection of commissioners.

The defendants in this action are the commission and individual commissioners charged with the responsibility of managing and maintaining the Veterans Memorial Auditorium in Des Moines. Plaintiffs are both residents of Des Moines and honorably discharged veterans who are not members of any of the organizations named in § 37.10. They therefore have standing to challenge the selection procedure under the test of Vietnam Veterans, 211 N.W.2d at 335.

The auditorium is used for diverse purposes, including high school basketball and wrestling, college basketball, symphony and rock concerts, graduation exercises, circuses, professional wrestling and a variety of shows and conventions. Full time employees receive consideration as employees of the City of Des Moines and benefits of city employment including insurance and pensions.

The petition alleged that the selection process provided by § 37.10 was constitutionally deficient in four respects. It claimed plaintiffs were denied equal protection of the law guaranteed by the fourteenth amendment to the United States Constitution, both as veterans and as residents of Des Moines generally. It alleged infringement of plaintiffs’ first amendment freedoms of speech and association. It complained that § 37.10 was an unlawful delegation of legislative power, in violation of article III, § 1 of the Iowa Constitution. And it challenged the requirement that commissioners must be veterans, an equal protection argument claiming discrimination against non-veteran citizens of Des Moines. The two allegations that equal protection has been denied to residents of Des Moines generally are new and broader claims which were not made in Vietnam Veterans.

Trial court decided that the plaintiffs’ delegation and equal protection claims were meritorious, relying upon the dissent in Vietnam Veterans, 211 N.W.2d at 338-41. It therefore declared the commissioners’ positions vacant and adopted the remedy proposed by the Vietnam Veterans dissent: the city council of Des Moines would appoint commissioners pursuant to § 37.14. 211 N.W.2d at 342. That portion of the decree was directed at the second paragraph of § 37.10, the selection process. Trial court, however, went beyond the Vietnam Veterans dissent to nullify the requirement of the first paragraph and provide that the commissioners need not be veterans. Defendant commissioners filed a timely notice of appeal. Because the case was heard in equity, our review is de novo. We consider only the state law question because it is dispositive of the appeal.

I. The selection procedure. The delegation of state sovereign power is a matter of state constitutional law. Iron Workers Local No. 67 v. Hart, 191 N.W.2d 758, 772 (Iowa 1971). The Federal Constitution is not implicated in any way. Potter v. New Jersey Supreme Court, 403 F.Supp. 1036, 1039 (D.N.J.1975). The provision in which plaintiffs place reliance, article III, § 1, provides:

General assembly. Section 1. The Legislative authority of this State shall be vested in a General Assembly, which shall consist of a Senate and House of Representatives . . . 2

State courts have expressed two views on the propriety of delegation of state power to private persons. Vietnam Veterans, 211 N.W.2d at 338-9 (McCormick, J., dissenting). The first is exemplified by Ashmore v. Greater Greenville Sewer Dist., 211 S.C. 77, 44 S.E.2d 88 (1947). That case held a delegation unconstitutional because there was a “lack of substantial and rational relation between the appointive or elective power and the function of government which the appointees or electees are to perform.” 211 S.C. at 94, 44 S.E.2d at 96. Application of this standard in later South Carolina cases resulted in upholding two statutes in the face of constitutional attack. In Floyd v. Thornton, 220 S.C. 414, 421-2, 68 S.E.2d 334 (1951) the statute provided that members of the board of bank control would be appointed on recommendation of a bank association, a savings and loan association and representatives of cash depositories. The delegation was upheld because the organizations were “especially qualified” to make such selections. 220 S.C. at 421-2, 68 S.E.2d at 337-8. And in State v. Taylor, 223 S.C. 526, 77 S.E.2d 195 (1953) (per curiam) a technical livestock committee, which was empowered to promulgate rules enforceable by criminal penalties, was appointed by an agricultural college board of trustees and officers of the Livestock Dealers Association. Due to the special qualifications of these groups, 223 S.C. at 531, 77 S.E.2d at 197-8, the delegation was upheld.

A similar view finds expression in Humane Society v. New Jersey State Fish and Game Council, 70 N.J. 565, 362 A.2d 20 (1976). The facts were akin to those here. Various private organizations, such as hunting clubs and an association of commercial fishermen, nominated members of the Fish and Game Council, who were then appointed by the governor. Plaintiffs were environmentalists who alleged that their interests were at variance with the appointing groups named in the statute. The statute was upheld. In examining the delegation problem, the court said that delegation to private persons is permissible if sufficient safeguards exist. “The test is whether the particular delegation is reasonable under the circumstances considering the purpose and aim of the statute.” 70 N.J. at 579, 362 A.2d at 28. Thus, the idea of safeguards enters the delegation to private parties controversy, just as it has become important in the area of delegation to administrative agencies. See Board of Sup’rs of Linn County v. Dept. of Revenue, 263 N.W.2d 227, 238 (Iowa 1978); Town of Arlington v. Board of Conciliation & Arbit., 370 Mass. 769, 352 N.E.2d 914, 920 (1976) (dealing with arbitration award to firefighters and policemen; “delegations to private persons are not forbidden so long as proper safeguards are provided”); Southern Pacific Transp. Co. v. Public Utilities Comm’n, 18 Cal.3d 308, 313, 134 Cal.Rptr. 189, 192, 556 P.2d 289, 292 (1976) (“The Legislature may not confer upon private persons unrestricted authority to make administrative determinations.”). Of course, none of these last three are appointment cases, but we give consideration to the general standard.

The second view, and that supported by the Vietnam Veterans dissent, is that private individuals cannot be empowered to select boards to spend public funds, no matter how well qualified they may be. For this the dissent cites Opinion of Justices, 337 Mass. 777, 150 N.E.2d 693 (1958); State v. Schorr, 6 Terry (45 Del.) 18, 65 A.2d 810 (1948), and Tucker v. State, 218 Ind. 614, 35 N.E.2d 270 (1941). The discussions of these cases in the Vietnam Veterans dissent, 211 N.W.2d at 338-9, are entirely adequate and do not bear repeating here. It is sufficient to note that they support the strict view which the Vietnam Veterans dissent would adopt.

At least three other states apply this strict rule. In Morrow v. Wipf, 22 S.D. 146, 158-9, 115 N.W. 1121, 1126-7 (1908) the statute being considered provided that, in the absence of a sufficient contest over the selection of delegates, the county central committee of a political party could choose delegates to the state convention without a county convention. This was found to be an impermissible delegation of legislative authority. The court was concerned that an unscrupulous committee would never find a contest sufficient to require a convention.

Similarly, the law considered in People ex rel. Rudman v. Rini, 64 Ill.2d 321, 1 Ill.Dec. 4, 356 N.E.2d 4 (1976) provided that, upon the death of an office holder, the county central committee of the decedent’s political party should appoint a qualified member of the same party to fill out the term. The statute was held unconstitutional because the power to appoint officers is a sovereign power of the state and cannot be delegated to private parties. 64 I11.2d at 328, 1 Ill.Dec. at 7, 356 N.E.2d at 7.

The Pennsylvania Supreme Court supported this view in Hetherington v. McHale, 458 Pa. 479, 329 A.2d 250 (1974). There, some (but not all) members of a committee which allocated funds for agricultural research projects were selected by three agriculture-oriented organizations. This observation stands out in the plurality opinion: “[a] fundamental precept of the democratic form of government imbedded in our Constitution is that the people are to be governed only by their elected representatives.” 458 Pa. at 484, 329 A.2d at 253. Noting that the private groups given the power of selection were responsive only to the interests of their membership, the court struck down the selection scheme.

Of special interest are two of the authorities upon which Hetherington relied. These are Olin Mathieson Chem. Corp. v. White Cross Stores, Inc., 414 Pa. 95, 199 A.2d 266 (1964) and Corning Glass Works v. Ann & Hope, Inc. of Danvers, 363 Mass. 409, 294 N.E.2d 354 (1973). Olin Mathieson invalidated the nonsigners provision of the Pennsylvania Fair Trade Act and Corning Glass stands for the same proposition in Massachusetts. Hetherington ⅛ reliance upon two cases which found fair trade act nonsigner provisions to be unconstitutional delegations is significant because Iowa also has such a decision in Bulova Watch Co. v. Robinson Wholesale Co., 252 Iowa 740, 108 N.W.2d 365 (1961). But see Hetherington, 458 Pa. at 493, n. 2, 329 A.2d at 257 (Jones, C. J., dissenting) (contending Olin Mathieson is inapposite). Thus, Hetherington is at least in part based on a delegation background similar to Iowa’s.

We now adopt the more strict rule exemplified by Hetherington, at least insofar as the appointment by private individuals of persons empowered to spend public funds is concerned. Whether delegation of other powers might survive scrutiny if proper safeguards or special qualifications are present is a question which we reserve. It is sufficient that we here decide that there are special interests involved which prohibit giving private groups control of the appointment of public officials with the power to spend public funds. Those interests require a strict rule against any delegation of sovereign power.

The scope of the remedy to which plaintiffs are entitled is dictated by what we have said thus far. To hold that the appointment of the commissioners should be entrusted to all veterans, without regard to membership in the eight named organizations, would still result in delegation of the power of appointment to a private group. The remedy, therefore, must be either the election of the commissioners by all qualified electors in Des Moines, or the appointment of the commissioners by ah appropriate public officer or body. Because the scope of the remedy required by the contravention of the state constitution is fully as broad as that potentially required by any of the federal constitutional grounds presented, we need not give consideration to any of those federal questions.

II. The qualifications for commissioners. We must also consider the propriety of trial court’s decision that the first paragraph of § 37.10 was unconstitutional. This paragraph requires that the commissioners be honorably discharged soldiers, sailors or marines of the United States.

Plaintiffs pleaded their attack on this requirement in the fourth paragraph of division IV of their petition:

4. That said statute violates Plaintiffs’ rights to the equal protection of the laws granted by the Fourteenth Amendment to the United States Constitution by arbitrarily and without valid legislative purpose, limiting the classification of persons who may serve as commissioners to honorably discharged United States Soldiers, Sailors and Marines, and thus excluding Plaintiffs as potential commissioners.

The concern set forth in this allegation may have been based on a belief that commissioners must also be members of one of the veterans organizations named in the statute. But the language of § 37.10 is clear and leaves no room for such a construction. See First Nat’l Bank of Ottumwa v. Bair, 252 N.W.2d 723, 725 (Iowa 1977). The only requirement which must be met in order to qualify as a commissioner is that the individual be an honorably discharged veteran. Because these plaintiffs are honorably discharged veterans, they suffer no disability by this requirement.

Instead, plaintiffs are attempting to raise the rights of third persons: non-veteran residents of Des Moines. This they may not do. Iowa Civil Liberties Union v. Critelli, 244 N.W.2d 564, 567 (Iowa 1976). There are exceptions to the rule against raising the rights of third parties, see Iowa Movers & Warehousemen’s Ass’n v. Briggs, 237 N.W.2d 759, 772-3 (Iowa 1976), but none apply here. Because plaintiffs do not have standing to complain about the qualification, no relief can be granted on that claim.

III. The remedy. We have said that the remedy required to satisfy the constitution of this state is fully as broad as any potentially required by the Federal Constitution. It is, therefore, appropriate to adopt the remedy advocated by the Vietnam Veterans dissent. 211 N.W.2d at 341-2. On the basis of the reasoning and authorities cited there, we reach the following conclusions.

Because the two paragraphs of § 37.10 are severable, the requirement that each commissioner shall be an honorably discharged soldier, sailor or marine of the United States remains intact.

The commission selected under § 37.-10 is an administrative rather than legislative body. There is no constitutional requirement that its members be elected rather than appointed. Therefore, this case does not involve a constitutional right requiring or permitting affirmative judicial implementation.

We need not substitute an alternate selection scheme. The legislature is free to provide that the positions should be filled by appointment by an appropriate public officer or body. If it prefers election of commissioners, the procedure is a matter for legislative determination.

Because the selection procedure of § 37.10 is severable from the remaining provisions of the statute, § 4.12, The Code, §§ 37.13 and 37.14 remain fully operative. The city council may, therefore, appoint commissioners pursuant to § 37.14.

The commission positions held by defendants are declared vacant 30 days from the issuance of procedendo in this case. The city council of Des Moines is authorized to appoint successor commissioners under § 37.14. Those commissioners shall meet the qualifications specified by the first paragraph of § 37.10.

Vacated in part and affirmed in part.

All Justices concur except HARRIS and LeGRAND, JJ., who dissent.

1 . 37.10 Qualifications — method of appointing. Each such commissioner shall be an honorably discharged soldier, sailor, or marine of the United States, selected in the following manner:

Within sixty days after the election, each post of the Grand Army of the Republic, Spanish-American War Veterans, Veterans of World War I, and the American Legion, Disabled American Veterans of the World War, Veterans of Foreign Wars of the United States, Marine Corps League and American Veterans of World War II (AMVETS) in the county or city, as the case may be, shall appoint three delegates who shall, within ninety days after such election, meet in convention in the county or city, as the case may be, and by ballot select five commissioners, whose names shall be forthwith furnished to the board of supervisors, or the city council, as the case may be, whereupon said board of supervisors or city council shall by resolution appoint them as such commissioners.

2 . Cases cited in the discussion which follows rely on several different varieties of state constitutional provisions to reach the delegation question. Ashmore v. Greater Greenville Sewer Dist., 211 S.C. 77, 44 S.E.2d 88 (1947) relied upon equal protection and due process clauses. Hetherington v. McHale, 458 Pa. 479, 329 A.2d 250 (1974) is founded upon Article IV, § 8 of the Pennsylvania Constitution, giving appointive power to the governor. Olin Mathieson Chem. Corp. v. White Cross Stores, 414 Pa. 95, 199 A.2d 266 (1964) and Remington Arms Co. v. G. E. M. of St. Louis, Inc., 257 Minn. 562, 102 N.W.2d 528 (1960) both rely upon provisions vesting the legislative power in the legislature. Bulova Watch Co. v. Robinson Wholesale Co., 252 Iowa 740, 108 N.W.2d 365 (1961) contains no reference to any specific constitutional provision, although we may infer a reliance on Article III, § 1 in light of Bulova’s primary reliance on Remington Arms.