Rafferty v. Town Council of Inc.
| Decision Date | 26 September 1917 |
| Docket Number | No. 30563.,30563. |
| Citation | 180 Iowa 1391,164 N.W. 199 |
| Parties | RAFFERTY ET AL. v. TOWN COUNCIL OF INCORPORATED TOWN OF CLERMONT ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Fayette County; A. N. Hobson, Judge.
The Incorporated Town of Clermont asserts that it has annexed certain lands owned by plaintiffs to its territory. The plaintiffs challenge the legality of this annexation. On their petition the district court issued a writ of certiorari to review the legality of the proceedings. Upon hearing it annulled the writ, and plaintiffs appeal. Affirmed.H. P. Hancock, of West Union, for appellants.
Pickett, Swisher & Farwell, of Waterloo, for appellees.
[1] I. On the authority of Moore v. Perry, 119 Iowa, 423, 93 N. W. 510, and some of our later decisions in school district cases, it is settled that, unlike statute requirements which are safeguards against the loss of substantial rights of the public, statutes are not mandatory which are mere directions as to method in the formal steps preparatory to an election at which there is the right and opportunity to accept or reject what such formalities present for action. That a proposition upon which the people have the final word does not reach them in a manner which is an exact compliance with the Code loses the electors nothing of substance. Omissions to cross and dot do not, as seems to be contended, go to jurisdiction to bring on an election. The proceedings of town councils and the acts of town officers should be liberally construed, with a view to upholding the transaction of essential public business. Union Pac. Co. v. McLean, 92 Neb. 813, 139 N. W. 679. And see Bank v. Dandridge, 12 Wheat. 64, 6 L. Ed. 552;State v. Siemens, 68 Or. 1, 133 Pac. 1173;McCloud v. City, 54 Ohio St. 439, 44 N. E. 95; 36 Cyc. 1157; Erhart v. Schroeder, 155 U. S. 124, 15 Sup. Ct. 45, 39 L. Ed. 94;French v. Edwards, 13 Wall. 506, 20 L. Ed. 702;United States v. Eaton, 169 U. S. 331, 18 Sup. Ct. 374, 42 L. Ed. 767.
[2][3][4][5] One complaint is the court erred in holding that the resolution for the election was properly and legally signed by the mayor. Elaborating, appellant says that the notice of election and the proclamation of the result of the election were signed by the mayor, but the record of said meeting was signed by the clerk, and not by the mayor; that while a copy of the resolution was by the mayor taken to the printer for publication, and then signed by him in the office of and in the presence of said printer, this was a mere piece of paper to guide the printer in the publication of said notice, and there is no record that the signature was attached to the original resolution as recorded; that the record of the meeting does not show that the mayor ever signed said resolution “of record.” In one view, the controversy over the signing by the mayor of the initial resolution is a moot one. The real dispute is on whether the fact that he signed it might be shown by an amendment to the return or by parol testimony; the contention being that the latter may not be permitted, because a variance of the return, and that the amendment was not authorized. In other words, if the method of proof was proper, it is established that the mayor did sign. Appellant insists the failure to sign went to jurisdiction, and that without such signature there was no resolution which was effective, and nothing to publish, and that publishing such unsigned resolution effected nothing. If failure to sign does not go to jurisdiction, the failure does not, for reasons stated and presently to be stated, afford basis for substantial complaint; for, if the signing was jurisdictional, then additional evidence upon what was done on a jurisdictional point was competent. Hatch v. Board, 170 Iowa, 850, 152 N. W. 28. The statement that the clerk “made no record of said signature” we do not quite understand. We know of no requirement that the signature as a thing of itself shall be made of record, and it seems to us that, if the resolution be signed, that is all even literal compliance with the statute requires on that head.
Assume, with appellant, that there was no power to act until the mayor signed, and it follows that oral testimony on whether he did or did not sign was rightly received. That being so, it becomes unnecessary to go into the further contention that, though Code, § 4159, permits the return to be amended, if the original return is defective, here there was no defective return. The question then narrows to whether the court was justified in finding, as it did, that the resolution was signed. We think this is established by the testimony of the witness Scott; and it may be added, to the statement that such testimony was competent, that it was not until after it had been given that any objection thereto was made, and the vital point of the objection was that the testimony was not the best evidence, which, as we have seen, is in any event not well taken, since it is the appellant's own theory that it was upon a point concerning which testimony additional to the return was permitted. It may be added, further, that the objection was not ruled on, and that consequently we have no exception to proceed upon.
[6] Complaint is made that the amended return, which differed from the original one only in exhibiting the signature of the mayor, was filed too late and when counsel were not present. It is conceded the attorneys of the plaintiff were informed of the fact of filing, and it appears of record they filed a motion to strike the amendment. How to deal with the time at which the amendment was filed was very largely in the discretion of the trial court, and nothing appears here to justify us in interfering with it, and at all events, in view of what has been said concerning the oral testimony, there was no prejudice in permitting this amendment to stand.
[7] We have no quarrel with the very large number of authorities cited by appellant for the general proposition that the return is conclusive as to all matters questioned in the certiorari proceeding, and that the determination is to be made upon the return, which imports absolute verity, and do not question the soundness of the decisions in other jurisdictions that the lower court can take nothing from nor add anything to the evidence after the writ is served. But, notwithstanding these generalities and applications of them in other jurisdictions upon their own statutes, we are controlled by our own statutes and our interpretations of them, and therefore hold that there was no improper dealing with the record in this case.
Town of Hancock v. McCarthy, 145 Iowa, 808, 123 N. W. 766, relied on by appellant, is not based on want of formalities, and in fact holds that what was done did not work as matter of substance that the mayor had not approved. Whatever is said in Moore v. Perry, 119 Iowa, 423, 93 N. W. 510, refers to action by which the council attempts to prevent the mayor from approving or vetoing ordinances, and holds that, where he fails to approve in such circumstances, there is no resolution which may be effectively published. Stutsman v. Mayor, 111 Iowa, 40, 82 N. W. 460, holds that, where the mayor vetoes a resolution to pay a claim, he is justified in refusing to sign a warrant to pay that claim. Altman v. City, 111 Iowa, 105, 82 N. W. 461, is merely that an ordinance which requires that a mayor shall sign or veto and return resolutions passed before the same take effect is mandatory; the resolution being one authorizing street improvements, and assessing special taxes in payment therefor. That is, in effect, the holding of Heins v. Lincoln, 102 Iowa, 74, 71 N. W. 189, as applied to an ordinance selling bonds, putting the cash in the treasury, and therewith redeeming old bonds.
[8] Though appellant contends the fact is immaterial, we are of opinion that the vote actually cast on the annexation is worthy of great consideration upon whether any substantial wrong was done the electorate by any alleged irregularity in the steps through which they were invited to act. On the election of town officers only 126 votes were cast, while on the election in review 127 votes were cast for annexation; 105 being in favor thereof, and 14 against. The central object of all the steps is to procure an expression upon the final issue, and where, as here, that was accomplished, we should not be hypercritical as to the steps. The alleged failure of the mayor to sign the resolution requiring an election did not induce a single voter to refrain from voting, nor mislead one of them. This is inherently manifest. Moreover, the resolution which was published and which was the only...
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