Lehigh Sewer Pipe & Tile Co. v. Inc. Town of Lehigh

• Decision Date: 10 June 1912
• Court: Iowa Supreme Court
• Parties: LEHIGH SEWER PIPE & TILE CO. ET AL. v. INCORPORATED TOWN OF LEHIGH ET AL.

156 Iowa 386

136 N.W. 934

LEHIGH SEWER PIPE & TILE CO. ET AL.

v.INCORPORATED TOWN OF LEHIGH ET AL.

Supreme Court of Iowa.

June 10, 1912.

Appeal from District Court, Webster County; C. E. Albrook, Judge.

This was a certiorari proceeding to review the action of the town council of the incorporated town of Lehigh in extending the limits of said town. The trial court dismissed the petition and plaintiffs appeal. Affirmed.Mitchell & Fitzpatrick and Healy & Healy, all of Ft. Dodge, for appellants.

Frank Maher and Kelleher & O'Connor, all of Ft. Dodge, for appellees.

DEEMER, J.

The incorporated town of Lehigh is in the southern part of Webster county, and prior to the proceedings complained of contained 240 acres. By the extension which is challenged it was made to include 1,440 acres; plaintiffs' property being in the territory added to the town. The proceedings began with the passage of a resolution by the town council on June 6, 1910, which provided that the matter of extension be submitted to the electors at an election to be held on July 6th of the same year, and directed that notice of such election be given as provided by section 615 of the Code. The resolution directed that the question to be submitted should be: “Shall the incorporated limits of the town of Lehigh, Iowa, be extended in the following manner, to wit: Commencing at the north quarter corner of section 7, township 87, range 27 west of the 5th P. M., thence west on the section line to the northwest corner of section 12, township 87, range 28, thence south on the section line to the west quarter corner of section 13, township 87, range 28, thence east on the quarter line to the center of section 18, township 87, range 27, thence north on the quarter line to the starting point so as to include within the area of the incorporated limits of said town all of the said lands located within the limits above described?” Said resolution was put to a vote of said council, which said vote thereon was as follows: “F. F. Nelson, Yes. George Edgington, Yes. B. J. Lang, Yes. J. F. Suer, Yes. W. J. Post, Yes. And said motion and resolution was duly declared adopted.”

The notice which was published in the Lehigh Valley Argus, the last of the publications being on June 30, 1910, was as follows: “To the electors of the town of Lehigh and to all persons whom it may concern. Notice is hereby given that whereas the town council of the town of Lehigh, Webster county, Iowa, on the 6th day of June, A. D. 1910, passed a resolution extending the corporate limits of the town of Lehigh, in the following manner, to wit: Commencing at the north quarter corner of section 7, township 87, range 27, thence west on the section line to the northwest corner of section 12, township 87, range 28, thence south on the section line to the west quarter corner of section 13, township 87, range 27, thence east on the quarter line to the center of section 18, township 87, range 27, thence north on the quarter line to the starting point and so as to include within the incorporated limits of the said town of Lehigh all of the lands within the above described lands. And, whereas, the said town council of the said town of Lehigh, Iowa, fixed the 6th day of July, A. D. 1910, as the time for holding an election on the question for the purpose of voting upon the extension of the incorporated limits as above set forth, all such electors and all persons whom it may concern are therefore hereby notified that an election is hereby called in accordance with the law, including the provision of Code section 615 of the Code of 1907, to be held on the 6th day of July, A. D. 1910, in the said town of Lehigh, Iowa, in the Salvation Army building located on Main street of said town of Lehigh, Iowa, and that the question to be voted on at said time will be: ‘Shall the incorporated limits of the town of Lehigh, Iowa, be extended in the following manner, to wit: Commencing at the north quarter corner of section 7, township 87, range 27, west of the 5th P. M., thence west on the section line to the northwest corner of section 12, township 87, range 28, thence south on the section line to the west quarter corner of section 13, township 87, range 28, thence east on the quarter line to the center of section 18, township 87, range 27, thence north on the quarter line to the starting point and so as to include within the area of the incorporated limits of said town all of the land located within the lines above described?’ You are hereby notified to be present and vote on said question and to govern yourselves accordingly. [Signed] J. W. Williams, Mayor of the Town of Lehigh, Iowa.”

Affidavit of publication was duly made showing four consecutive publications. The town council appointed two of their own number and the mayor to act as judges of election and two others as clerks, and the record of the town council shows the following with reference to the election: “At a special election held in Lehigh, township of Sumner, county of Webster, state of Iowa, on the 6th day of July, 1910, the polls of said special election were opened at 9:00 o'clock a. m. of said day. That 247 votes were cast at said election, 115 for, 110 against, and 22 defective, and the election was declared carried by a majority of the votes. The judges of the election then proceeded to declare the extension a part of the town of Lehigh.”

Some questions are made regarding this return which will be hereafter referred to. The ballots used at the election were in the following form:

“Shall the incorporate limits of Lehigh, Iowa, be extended to include the territory described in the proclamation of the Mayor of Lehigh? To vote yes make an X in the square opposite the word ‘Yes.’ To vote No make an X in the square opposite the word ‘No.’

Yes ?

No ?”

It is claimed that of the 22 ballots rejected as defective, 14 were against the extension and 8 for; that one man appeared to vote between 8 and 9 o'clock in the morning, but could not do so; and that one vote was cast by a man who lived outside the territory. Plaintiff also attempted to show that there was no occasion for extending the limits of the town, and that it was done to take in plaintiffs' large factory for revenue purposes only. Refusal to receive such testimony is made one of the grounds of complaint. It is also contended that the resolution was insufficient, the ballots defective, the selection of judges illegal, the polls were not open at the time required, illegal votes were cast and counted, and legal votes rejected, and that the trial court was in error in permitting defendants to amend their return to the writ, such return being in contradiction of the records made by the town council as to the time of opening the polls.

[1] The proceeding being by certiorari, we may at once eliminate some of the questions argued. There being no fraud charged, it was not permissible in this form of action to review the action of the town council or the electors on the ground that there was no necessity for the extension; hence the trial court did not err in rejecting the testimony offered to show that the purpose of the extension as gathered from the conduct of the defendants was to derive a revenue from the town, to sell bonds, and to increase its indebtedness. Spitzer v. Runyan, 113 Iowa, 619, 85 N. W. 782;State v. Village, 112 Minn. 330, 127 N. W. 1118.

[2] Again, upon such a proceeding as this, there can be no recount of the ballots. State v. Sundquist, 137 Wis. 292, 118 N. W. 836;State v. Village, 95 Minn. 243, 103 N. W. 1017;People v. Austin, 20 App. Div. 1, 46 N. Y. Supp. 526.

[3] The alleged defective description of the territory to be included has been cured by an amended abstract, and it was permissible for the defendants to amend their return by striking therefrom that part showing that the polls were not opened until 9 o'clock. As the record now stands, there is no affirmative showing that the polls were not open at 8 o'clock in the morning as the law requires; indeed, the preponderance of the testimony shows that the judges and clerks were present from 8 in the morning until closed at the regular hour, and that every one who presented himself to vote or who expressed a desire to do so was given opportunity.

[4] It is doubtful if any one outside the proposed territory was permitted to vote. But, however this may be, there is no showing as to how he voted, and it is manifest that his vote alone would not have changed the result. Finally, the matter of receiving or rejecting votes was purely ministerial, and, of course, certiorari will not lie to review purely ministerial functions. Lane v. Mitchell, 133 N. W. 381. The judges and clerks of election were properly chosen under sections 615 and 1093 of the Code of 1897.

[5] The trial court did not err in holding that the record made by the town council as to when the polls were opened was inconclusive upon the question, for the reason that the record of the town council was not the record of the judges and clerks of election, and hence not binding.

[6] As already stated, alleged errors in the description of the territory proposed to be added have been corrected, and the only question left for consideration, if there be any with which we may deal in this proceeding, is the sufficiency of the ballot which did not describe the territory to be added except in this way: “The territory described in the proclamation of the mayor of Lehigh.” It is conceded that there was but one proclamation, which was duly published as required by law, and that this gave a correct description of the property to be added. But it is argued that, as the statute expressly provides that a description of the territory to be added must be printed upon the ballot, the entire election was invalid because the ballot did not contain this description except by reference, and that the entire proceedings should be annulled. The issue thus presented is a very narrow one,...