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

• Court: United States State Supreme Court of Iowa
• Writing for the Court: DEEMER
• Citation: 136 N.W. 934,156 Iowa 386
• Decision Date: 10 June 1912
• 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.

[136 N.W. 934]

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.

[136 N.W. 935]

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....