Herrick v. Carpenter

• Court: Iowa Supreme Court
• Writing for the Court: BECK, J.
• Citation: Herrick v. Carpenter, 54 Iowa 340, 6 N.W. 574 (Iowa 1880)
• Decision Date: 22 September 1880
• Parties: HERRICK v. CARPENTER ET AL

6 N.W. 574

54 Iowa 340

HERRICK v. CARPENTER ET AL

Supreme Court of Iowa, Des Moines

September 22, 1880

Appeal from Louisa Circuit Court.

THIS is an action of certiorari to review the proceedings of the board of supervisors of Louisa county in ordering an election upon the question of the removal of the county seat. The Circuit Court held that the supervisors exceeded their powers in proceedings had which resulted in an order for an election, and reversed such order and required the supervisors to proceed anew in the manner prescribed by the law as declared in the judgment of the court. From this judgment the supervisors appeal.

AFFIRMED.

R. H Hanna, Arthur Springer, and Wright, Gatch & Wright, for appellants.

Tatlock & Wilson, Hurley & Hale, and Putnam & Rogers, for appellee.

OPINION

BECK, J.

I.

The plaintiff filed an amended abstract setting out matters which, he alleges, appear in the record and are not shown in the defendants' abstract. The defendants also file an additional or further abstract. Each of these additional abstracts is assailed by the opposite party by a motion to strike, each motion being based mainly on the ground that the abstract assailed was not filed within proper time. In view of the peculiar facts and condition of the case, which need not be here stated, we think each motion should be overruled and that the several abstracts should be permitted to stand.

The plaintiff challenges the correctness of the defendant's original and additional abstract, and defendants deny that plaintiff's amended abstract is correct. We are therefore, required to examine the record on file in this court to determine one or two disputed facts. In the view we take of the case our inquires need not extend to other matters. This will result in a decision here on the merits of the case and the determination of a rule of law upon which the rights of the parties rest, a result with which both parties ought to be satisfied, but which, we think, both parties seek to avoid by the motions we have just determined.

The petition alleges that the defendants exceeded their jurisdiction and acted illegally in, among other things, considering and refusing to strike from the files all affidavits submitted in the case, other than those attached to the remonstrances, as required by Code, § § 282 and 283, tending to show that the remonstrants, or some of them, were not legal voters, or their signatures were not genuine. The questions raised by this objection to the proceedings of the board need alone be considered, as, in the view we take of the case, its determination will settle the rights of the parties so far as they are involved in this action. The record discloses the fact that the supervisors, in passing upon the remonstrances, did consider affidavits other than those attached to such remonstrances and required by the statute, for the purpose of determining whether the remonstrances were legal voters, and whether their signatures to the remonstrances were genuine, and that upon such proof names were stricken from the remonstrances. If this had not been done, the names of the remonstrants would have exceeded the names of the petitioners. We are to determine whether this action was in excess of the power of the supervisors, and, therefore, illegal.

II. We may premise by saying that the determination of the sufficiency of the remonstrances and the number of names signed thereto was a judicial act. See Baker et al. v. The Board of Supervisors of Louisa County, 40 Iowa 226; Bennett et al. v. Hetherington et al., 41 Iowa 142; it may, therefore, be reviewed by certiorari. Code, § 3216.

III. The following provisions of the Code, applicable to the question before us, demand construction:

"SEC. 281. Whenever the citizens of any county desire a relocation of their county seat, they may petition their board of supervisors respecting the same at any regular session.

"SEC. 282. Such petition shall designate the place at which the petitioners desire to have the county seat relocated, and shall be signed by none but legal voters of said county, and shall be accompanied by affidavits sufficient to satisfy said board that the signers are all legal voters of said county, and that the signatures on said petition are all genuine.

"SEC. 283. Remonstrances, signed by legal voters of the county only, and verified in like manner as the petition, may also be presented to the board. If the same persons petition and remonstrate, they shall be counted only on the remonstrance, and if a greater number of legal voters remonstrate against the relocation than petition for it, no election shall be ordered."

Are the supervisors, under these provisions, authorized to receive and consider affidavits other than those accompanying the remonstrance when filed? This is the question presented for our decision.

It will be observed that the petition and remonstrance are to be verified in the same way, by affidavits accompanying them when filed, which shall be sufficient to satisfy the "board that the signers are all legal voters of the county, and that the signatures on the petition are all genuine."

It is plain that the...