93 N.W. 510 (Iowa 1903), Moore v. City Council of City of Perry

Citation:93 N.W. 510, 119 Iowa 423
Opinion Judge:DEEMER, J.
Party Name:J. H. MOORE et al., Appellees, v. THE CITY COUNCIL OF THE CITY OF PERRY, ALLEN BREED, Mayor, P. H. O'CONNER et al., Councilmen, AND H. A. NASH, City Clerk, Appellants
Attorney:Shortley & Harpel and W. H. Fahey for appellants. Edmund Nichols for appellee.
Case Date:February 03, 1903
Court:Supreme Court of Iowa
 
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Page 510

93 N.W. 510 (Iowa 1903)

119 Iowa 423

J. H. MOORE et al., Appellees,

v.

THE CITY COUNCIL OF THE CITY OF PERRY, ALLEN BREED, Mayor, P. H. O'CONNER et al., Councilmen, AND H. A. NASH, City Clerk, Appellants

Supreme Court of Iowa, Des Moines

February 3, 1903

Appeal from Dallas District Court.--HON. A. W. WILKINSON, Judge.

CERTIORARI proceedings to review the action of the city council of the city of Perry in extending the limits of said city. The trial court overruled a demurrer to the petition, and defendants appeal.

Affirmed.

Shortley & Harpel and W. H. Fahey for appellants.

Edmund Nichols for appellee.

OPINION

Page 511

[119 Iowa 424] DEEMER, J.

The defects in the proceedings of the city council which are sought to be reviewed relate to the legality of the meeting at which the resolution for extension was passed, the neglect and failure of the mayor and city clerk to sign the resolution, and defects in the notice for the election to be held on the question of extension. The facts, as gathered from the petition, are that at a regular meeting of the council held on September 3, 1900, a resolution for the extension of the city limits was adopted. The council then adjourned until September 5th. On that date the following record was made: "Council met [119 Iowa 425] pursuant to adjournment of September 3, 1900. Present: Mayor Breed, Councilmen Ginn and Heaton. No quorum being present, on motion of Heaton, and seconded by Ginn, council adjourned to meet September 8th, 1900, at 8 o'clock p. m. Carried. H. A. Nash, Clerk. Approved October 2, 1900." On the 8th the council met, and adjourned until September 10th. On the 10th it again met. Present, four councilmen; the mayor and clerk being absent. O'Conner, one of the councilmen, was elected "chairman of the meeting," and one Carroll, having no connection with the city, was chosen "temporary clerk," and the records show the following proceedings: "Moved by Ginn, and seconded by Heaton, that the resolution passed September 3rd, 1900, extending the city limits, be rescinded. Ginn, Heaton, O'Conner, and Robinson voted aye. Carried. Moved by Heaton, and seconded by Robinson, that the resolution extending the city limits be passed, and that the mayor and city clerk give due notice of an election to be held on October 5th, 1900, between the hours of 7 o'clock a. m. and 7 o'clock p. m., at which time the qualified voters within the proposed limits shall have a right to vote. On such call Heaton, O'Conner, and Robinson voted aye, and Ginn voted no. Motion carried. Resolution recorded in Book of Ordinances and Resolutions."

We take it there is a clerical mistake here in the date at which the election was to be held; that it should be the 15th of October, instead of the 5th, as stated,--although neither party has seen fit to correct the error. The resolution passed at the September 3d meeting was signed by the mayor and clerk, but the one adopted at the meeting on the 10th was not signed by them. O'Conner and Carroll signed the second resolution as "acting mayor" and "acting city clerk." The proclamation and notice of election referred to a resolution passed at the meeting held September 3d, but fixed the time for the election as October 15th. A vote was had on the date so fixed, resulting in [119 Iowa 426] favor of the extension as proposed. The resolution passed September 10th was never submitted to the mayor for his signature, nor did he ever refuse to sign it. No notice of any of the meetings of the city council above referred to was given, and at the meeting of September 15th there was no quorum. These facts furnish the basis for the legal proposition involved. The regularity of the meeting held on September 10th is...

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