Richman v. Board of Sup'rs of Muscatine County
| Decision Date | 17 December 1885 |
| Parties | RICHMAN ET AL. v. THE BOARD OF SUPERVISORS OF MUSCATINE COUNTY |
| Court | Iowa Supreme Court |
Appeal from Muscatine Circuit Court.
CERTIORARI to review the acts and proceedings of defendants in authorizing the construction of a levee, and the assessment of taxes upon adjacent lands. The circuit court adjudged that the proceedings resulting in the levy of the taxes were illegal and void. Defendants appeal.
AFFIRMED.
Brannan Jayne & Hoffman, Hall & Huston and Hurley & Hale, for appellants.
Richman Burk & Russell and J. Carskaddan, for appellee.
I. The levee built under authority of the proceedings had in this case is upon Muscatine island, a large island in the Mississippi river, which lies both in Muscatine and Louisa counties. The levee extends from or near the city of Muscatine, in Muscatine county, to or near to Port Louisa, in Louisa county, a distance of about twelve miles. Four miles of the levee are in Muscatine county. Proceedings were had in pursuance of the statute, before the supervisors of both counties, to authorize the construction of the work. Those had by the board of supervisors of Muscatine county are brought in question in this case.
II. Fifteen plaintiffs join in the action, each one of whom is an owner of lands subject to assessments on account of the construction of the levee. Defendants moved the circuit court to strike the names of all the plaintiffs, except one, from the petition, for the reason that they are misjoined as plaintiffs. The motion, we think, was rightly overruled. Code, § 2545, provides that "all persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except where it is otherwise provided in this Code." The subject of the action is the proceedings of the board of supervisors authorizing the construction of the levee. All of plaintiffs have an interest in this subject and in the remedy sought. Their interest is alike, though not equal. The remedy sought is a judgment declaring the proceedings void. One judgment will afford the relief asked by each plaintiff. Indeed, it would seem that the adjudication to the effect that the proceedings are void ought to be regarded as determining the illegality and invalidity of these proceedings as to the whole world, and render them incapable of enforcement. But, be this as it may, it is certain that the plaintiffs have a common interest in the subject of the action and in the relief sought therein; they may therefore join as plaintiffs. See Skiff v. Cross, 21 Iowa 459; Brandirff v. Harrison Co., 50 Iowa 164. Independent School-dist. Graham Tp. v. Independent School-dist. No. 2, 50 Iowa 322, and Bort v. Yaw, 46 Iowa 323, are unlike this case, inasmuch as the plaintiffs in the respective cases were not interested alike in the relief sought. Each plaintiff sought distinct relief.
III. A motion to quash the writ of certiorari, on the ground that it does not require the defendants to certify the facts in the case, requiring nothing more than the records, was overruled. The defendants did certify all the facts they deemed material, and the case was tried thereon. Assuming that the form of the writ is erroneous, yet, as the defendants brought for review all the facts before the court which were considered, no prejudice resulted on account of the error.
IV. Counsel for defendant think that the circuit court did not adjudge that the defendants exceeded their jurisdiction, and that the only illegality found by the judgment pertains to the levy of the assessment. The record before us clearly shows that the circuit court did hold that the proceedings were void for the reason that they were illegal, and in excess of the authority of the supervisors. If the judgment does not conform to this adjudication, defendants, having failed to ask for the correction in the court below, cannot now complain. It may, upon affirmance of the case, be corrected so as conform to the adjudication, to the effect that the supervisors exceeded their jurisdiction.
V. In our opinion, the record before us fails to show that defendants had jurisdiction, and in the absence of such showing the law presumes that they acted without jurisdiction. Chapter 2, tit. 10, of the Code, (sections 1207-1216,) and chapter 44, Acts Nineteenth General Assembly confer authority upon the supervisors of the counties to cause levees to be constructed. Code, § 1208, provides that, in order to empower the board of supervisors to exercise such authority, "a petition signed by a majority of persons resident in the county owning lands adjacent to such improvements, shall be first filed in the office of the county auditor, setting forth the necessity of the same, and the starting point, route and termini." The section contains various other provisions which need not be here recited. Section 1209 provides that "the supervisors, at the session set for the hearing of said petition, shall, if they find the preceding section to have been complied with, proceed to hear and determine said petition." A consideration of these sections and others of the statute leaves no doubt in the mind that the petition of the character, and signed by the residents interested in the improvements, as prescribed by section 1208, is a jurisdictional matter. Unless the requirements of...
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