Evening times-Republican. [volume] (Marshalltown, Iowa) 1890-1923, 1907-11-23
Decision BY Judge Howe Up
holds the Legality OF the New
Form of City Government
is NO CLASS LEGISLATION.
Decision Finds That Commission Plan
is Not in Conflict With Either Fed-
eraf or State constitution-Appea'
May Bo Taken to Supreme Court
for Final Test.
Special to Times-RepubIican.

Special to Times Republican.
Des Mones. Nov. 23.-Judge James
A. Howe, of the Polk county district
court, today gave his decision in tho
''Des Moines Plan" case in which he
holds on every ground that the plan
As constitutional. The other three
judges of the Polk county district
bench concur with him in the opin-
DON 1t is understood that the ques-
ton will be appealed to the supreme
court In order to get the opinion OF
that body In the matter.
Judge Howe in his opinion discusses
each OF the provisions Of the law and
holds that all are valid with the one
exception of the provision relating to
the initiative and referendum. On this
the court gives no extended opinion,
merely stating that the matter Is an
academic principle Of law and that
the commission plan Is valid on that
as on all the rest.
Considering first the question OF
whether or not the plan is unconstitu-
tional in not providing a republican
form of government az provided by
the constitution of the United States
and guaranteed to all citizens, the
court holds that in any event 1t is not
In conflict with the United States con-
stitution because that instrument
knows no city governments and does
not deal with them. 1t Is held further
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because 1t provides 70. government by
representatives of the people in con-
tradiotion to a monarchy. govern
ment by one man, or democracy
where the people meet in body to
make the laws
One of the points argued against the
constitutionality of the bill was that
it is special or class legislation. In
this those fighting against the law con-
tended that the principle had never
been passed upon by the supreme court
OF Iowa. The provision of the law is
"Tha,t in cities Of the first class or with
special charters now or hereafter hav-
ing population Of $4,000 or over, as
shown by the last preceding census"
etc, etc, the plaQ could be adopted.
Ii was contended Nhat here the legis-
lature exceeded Its authority.
Judge Howe holds that this Is not
special legislation, that the courts have
held that a law applying to cities Of
80, 900 even tho only one is In the state
is general law, tho where it applies
to cities of 100000 by the census of
1876" when there Is only one such, 1t
is class legislation or special legisla-
tion and unconstitutional. Judge
Howe holds that: "if a law Is made to
operate upon particular condition as
to persons or property, and is opera
tive whenever and wherever the same
conditions exist, affixing the same con-
sequences, then 1t is general law In
its operation. even tho 1t only operates
on one Of the conditions or classes
specified" Judge Howe holds further
more that tho the supreme court has
never decided directly on this point, it
has construed the provisions Of the
constitution in way that will lead
logically to his conclusion.
AS to the claim that the law conflicts
with the constitutional provision of
Iowa that: "The powers Of government
of Iowa shall be divided into three sep
arate departments-the legislative. the
executive and the judicial" Judge
Howe holds that city officials are not
part of the government of Iowa. He
points out further that If the law Is
unconstitutional on this ground then
every city of the state has preceded
under unconstitutional laws, for the
statutes of Iowa have long provided
"All legislative and other powers
granted to cities and towns, shall be
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conferred upon some officer by law or
ordinance"
1t was further contended that the
law is unconstitutional because it pro-
vides that only the names of two
candidates for mayor and eight candi-
dates for councilman shall be placed
upon the ballet. 1t was claimed that
this abridges the right Of citizen to
hold office and also deprives the
elector of his constitutional rights.
Judge Howe holds that the right to
hold office is not in the privileges and
immunities granted by the constitution
and Is not a natural right but civil
right.
That it is unconstitutional because
the proposition to build a new city
hall was submitted to the people of
Des Moines at the same special cleo
ton Judge Howe holds is untrue be-
cause the only requirement as to the
special election to vote on the Des
Mones plan is that it shall be called
by the mayor within two months after
the petition is submitted to him.
AS to the referendum and initiative
and recall Judge Howe holds that
whether they are unconstitutional or
not does not in any way effect the
constitutionality of the other pro-
visions of the law
AS to the contention of the park
commissioners of Des Moines that the
provision placing the parks under one
of the commissioners Is illegal be-
cause at the same session of the leg