Hatch v. Board of Sup'rs of Lyon County

• Decision Date: 09 April 1915
• Docket Number: 29818
• Citation: 152 N.W. 28,170 Iowa 82
• Parties: I. P. HATCH et al., Appellants, v. BOARD OF SUPERVISORS et al., Appellees
• Court: Iowa Supreme Court

152 N.W. 28

170 Iowa 82

I. P. HATCH et al., Appellants, v. BOARD OF SUPERVISORS et al., Appellees

No. 29818

Supreme Court of Iowa, Des Moines

April 9, 1915

Appeal from Lyon District Court.--HON. WILLIAM HUTCHINSON, Judge.

CERTIORARI to review the legality of the establishment of a highway. The district court dismissed the petition, and plaintiffs appeal.

Reversed.

S. D Riniker, for appellants.

Simon Fisher, County Attorney, for appellees.

SALINGER J. DEEMER, C. J., LADD and GAYNOR, JJ., concur.

OPINION

SALINGER, J.

Before the board of supervisors, this was a proceeding to establish a consent highway under the provisions of Sec. 1512 of the Code, which provides that such road may be established, "if the written consent of all the owners of the land to be used for that purpose be first filed in the auditor's office." One Anna Blum was such owner, and her name does not appear on the petition filed with the auditor. It does bear the signature of her husband.

The writ of certiorari may be granted where it is alleged that the tribunal below exceeded its proper jurisdiction, or is otherwise acting illegally. Code, Sec. 4154.

In determining whether the district court held rightly that the board had not exceeded its proper jurisdiction, and had not otherwise acted illegally, we have for solution the following ultimate questions:

1. Did the district court err in receiving testimony additional to the return?

2. Can it be shown on the certiorari hearing that the petition was materially altered without consent of the signers, and if it can, what is the effect of such testimony?

3. May it be shown, aside from the return, that some landowner did not give written consent?

4. Did the testimony admitted establish such written consent?

I. Before we are concerned with the effect of some of the testimony taken against objection, we must dispose of its admissibility.

One Anna Blum was the record owner of land which would be used if the establishment of the consent highway in controversy was not annulled. It became a controlling question on the hearing in district court whether the owner of that land had given written consent to such establishment. To support the contention that such consent was given, testimony was offered tending to show (1) that, while Anna did not sign, her husband, who signed his own name to the consent, was in truth the owner of said land; (2) that Anna directed her husband to sign his name to the consent, for which it is claimed that it amounts to written consent on her part. This testimony was taken over objections, which are broad enough to assert that (1) the court should not, on certiorari, go into the line of investigation to which this testimony was addressed; (2) such testimony was inadmissible, even if there was right to enter upon such investigation on proper testimony; (3) if it be assumed such testimony was admissible and should be considered, it fails to establish the written consent required.

a. Some of this testimony should not have been received if it be assumed there was right to entertain the issue upon which it was offered, and though it be further assumed that proper oral testimony would have been admissible. In any view, it was error to let a witness say the husband told him the wife was present at the signing, and heard certain promises then made by one who presented the consent for signature. It is manifestly incompetent.

b. And so of testimony, in effect, that the husband gave in the land to the assessor as the property of the wife, but asserted to the assessor at the same time that the land in truth and in equity belonged to the husband. This was (1) incompetent, irrelevant and immaterial, generally; (2) on a hearing on certiorari involving whether the board had a petition bearing the signature of the owner of certain lands, the court could not try out whether someone other than the record owner was the owner of such land; (3) giving in land for assessment as belonging to one's wife and statements of the husband to the assessor that such land belonged to the husband is not competent evidence that the husband owns the land. It is strongly to be doubted if it would be competent evidence of his ownership had he given the land in as being his. Adams v. Hickox, 55 Iowa 632, 8 N.W. 485; Hecht's case, 95 Iowa 757, at 761; 96 Iowa 96 at 100; Albright's case, 103 Iowa at 105.

II. There was testimony which, it may be conceded, for present purposes, tends to show that the wife gave consent to the establishment of this highway, and to evidence such consent, directed her husband to sign his name to the petition. No such testimony was adduced before the board, and that question does not seem to have been there mooted. The objections made are sufficient to present whether, this being so, such testimony should have been received on the hearing.

Certiorari is tried in the district court, primarily, upon the return made to it, and Code 4159 provides that if that return be defective the court may order a further return and compel same by attachment. By provision of Code 4160 the district court hears the matter "upon the record, proceedings and facts as certified, and such other testimony, oral or written, as either party may introduce."

Clearly enough, this authorizes the introduction of such oral testimony as either party may elect, in addition to the record and the facts certified by return, original or amended. But it does not say to what such testimony may be addressed. We are satisfied this permits no more than the addressing of oral testimony to the question whether the tribunal in review has exceeded its jurisdiction, or otherwise acted illegally. We cannot hold that this privilege was intended to be broader than this without disregarding the clear intention of the legislature, and the clear and continuous pronouncements of the courts. Of what use is the statute provision that a return shall be made certifying what occurred below--of what use is the other statute provision that such writ may be ordered amended, and the amendment enforced by attachment--if the parties have the unlimited right, by either oral or written testimony, to furnish the proof for their entire case? Of what advantage are methods for bringing before the district court merely what occurred below, if it is permitted to disregard all that occurred there, and to prove the case as though the board had never acted?

Another statute limits review to exceeding jurisdiction and otherwise acting illegally. Beginning with the 30th Iowa, and ending in the 155th, and dealing with it in a great many of the reports between the two, this court has said, in every conceivable way, that on review by certiorari no inquiry will be made whether the tribunal in review, acting within its powers, has committed error; say, for instance, in passing upon the weight and effect of testimony.

In Trust Co. v. District Court, 149 Iowa 66, at 70, a case ...