Luce v. Fensler
| Decision Date | 25 May 1892 |
| Citation | 52 N.W. 517,85 Iowa 596 |
| Parties | LUCE ET AL. v. FENSLER ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Harrison county; GEORGE W. WAKEFIELD, Judge.
Action to enjoin proceedings on a petition to the board of supervisors of Harrison county, asking the relocation of its county seat. The facts are stated in the opinion.L. R. Bolter & Sons, H. H. Roadifer, and J. W. Barnhart, for appellants.
Hart & McCabe, J. S. Dewell, and Chas. MacKenzie, for appellees.
On the 1st day of June, 1891, a petition was presented to the board of supervisors of Harrison county, asking that the question of removing the county seat from Logan and relocating it at Missouri Valley be submitted to a vote of the citizens of that county at the next general election. At the same time a remonstrance against relocation was presented. Pending a consideration of the petition and remonstrance and accompanying proofs by the board of supervisors, and before it had made any finding or announced any conclusion, the plaintiffs presented their petition in this action to a judge of the district court in and for Harrison county, asking that further proceedings on the petition for a relocation of the county seat be enjoined. The plaintiffs are citizens and taxpayers of Harrison county, who are interested in the county seat and opposed to the proposed relocation. The defendants are members of the board of supervisors, and citizens who have petitioned for the relocation. The grounds alleged for the relief demanded were that the petition was fraudulent, containing the names of many fictitious persons, or of persons who were minors, or for other reason not entitled to vote; that a member of the board of supervisors had full knowledge of the fraud, and was conniving with persons interested in the proposed relocation to have the order desired by them made, and that the board of supervisors, on account of its limited jurisdiction, had not the power to investigate the fraudulent character of the petition. A temporary writ of injunction was granted without notice. At a subsequent time the parties to the action appeared before the judge who had ordered the temporary writ, at chambers. The defendants filed answers and a motion to dissolve the injunction, sustained by affidavits. Counter affidavits and affidavits in rebuttal were filed. The judge found that the allegations of fraud made against the petition presented to the board of supervisors were so strongly supported that, if authorized by law, the temporary injunction should be continued until the final hearing, and overruled the motion to dissolve, so far as it was based upon any issue of fact; but he further found that a court of equity will not interfere by injunction to restrain a board of supervisors from considering or acting upon a petition for the removal of a county seat, and sustained the motion to dissolve, so far as it was based upon a want of jurisdiction. The temporary injunction was accordingly dissolved, and from that order plaintiffs appealed. Afterwards defendants appealed from so much of the order as overruled the motion to dissolve on the issues of fact. After the plaintiffs had taken their appeal they applied to a member of this court for an order staying proceedings on the petition to the board of supervisors pending the appeal, and the order was granted. The defendants afterwards appeared before the judge who granted that order, and moved that it be vacated. The motion was overruled, but with leave to defendants to renew the motion in this court. They have renewed the motion, and the case is submitted to us on that motion and on the appeals from the order of the district judge to which we have referred.
1. The provisions of the Code in regard to the relocation of county seats, so far as material to a determination of the questions presented to us for consideration, are as follows:
2. The plaintiffs contend that the total number of voters in Harrison county, as shown by the last census, was 5,137; that the total number of voters in the county in June, 1891, did not exceed 5,400; that the petition for relocation purports to be signed by 5,026 voters; that of the voters of the county 2,449 did not sign the petition, and that of those who signed it 1,028 also signed the remonstrance, and therefore should not be counted on the petition; that the remonstrance was signed by 3,540 voters. There is evidence which tends strongly to support these claims. If they are well founded, it is manifest that a gross fraud was attempted to be perpetrated upon the board of supervisors and the people of Harrison county by means of the petition in question, for in that case the remonstrance was signed by nearly 1,000 voters more than one half of all those in the county, but still lacked nearly 500 signatures to defeat a submission on the face of the papers. Or, stating the case differently, if the facts are as claimed by plaintiffs, the petition contains the names of more than 2,000 persons who were not voters of the county when it was presented to the board. It was held in Herrick v. Carpenter, 54 Iowa, 340, 6 N. W. Rep. 574, that the decision of the board of supervisors in regard to the sufficiency of the petition to authorize an order submitting the question of relocation to a vote of the people must be based upon the affidavits filed with the petition and remonstrance, and possibly upon matters within the knowledge of the board. It is insisted by appellants that under the doctrine of that case the board has no power to investigate the frauds alleged, and render a decision according to the real merits of the case; therefore that the power must exist in courts of equity to investigate the facts, purge the petition of fraudulent names, and render such a decree as would do justice to all the parties in...
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