Smith v. Powell

CourtUnited States State Supreme Court of Iowa
Writing for the CourtSEEVERS, J.
Citation7 N.W. 602,55 Iowa 215
Decision Date14 December 1880

7 N.W. 602

55 Iowa 215


Supreme Court of Iowa, Des Moines

December 14, 1880

Appeal from Cass Circuit Court.

THE defendants constitute the board of directors of the district township of Brighton, and the relief asked in the petition was that a writ of certiorari issue commanding them to certify to the Circuit Court certain proceedings of said board, to the end certain illegal acts of the board might be corrected. The writ issued, and at the final hearing the relief asked was granted. The defendants appeal.


Phelps & De Lano, for appellants.

Curtis & Wedgewood and John W. Scott, for appellee.




The defendants moved the court to "dismiss the cause and supersede the writ" upon several grounds, among which was that the "petition was not verified."

The motion was overruled. It is now insisted such ruling [55 Iowa 216] constitutes reversible error. The only ground relied on in argument is that above stated.

After the motion was overruled the defendants filed an answer, and there was a trial on the merits. Under repeated decisions of this court the supposed error was waived.

II. At the annual meeting of the electors of the district township in March, 1880, they voted a tax should be levied on the taxable property of the district township sufficient to raise the sum of $ 3,000, for the purpose of erecting a school-house in sub-district No. five.

It was the duty of the defendants to have "caused the secretary" to certify said tax to the board of supervisors. Instead of so doing they directed the secretary not to do so. In so doing they exceeded their jurisdiction, and did an illegal act.

It is insisted mandamus, and not certiorari, was the proper remedy to correct the alleged wrong. Mandamus compels the inferior tribunal, board or person to act, or perform a duty enjoined. Code, § 3373.

Certiorari lies when some act has been done by an inferior tribunal, board or officer in excess of their jurisdiction, or is otherwise illegal. Code, § 3216.

Neither writ can issue when there is any other "plain, speedy and adequate remedy." Code, §§ 3216, 3376.

It is clear, we think, the illegal direction given by the defendants to the secretary could not have been set aside if an action of mandamus had been instituted. It is [7 N.W. 603] possible the order of the defendants might have been ignored, and they compelled to perform the duty enjoined by statute. Conceding...

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15 cases
  • Pine Bluff Water & Light Co. v. City of Pine Bluff
    • United States
    • Supreme Court of Arkansas
    • 28 Marzo 1896
    ... ... 208); of proceedings of ... directors of a township directing their secretary not to ... certify a tax that had been voted (Smith v ... Powell, 55 Iowa 215, 7 N.W. 602); of proceedings of ... commissioners in granting or refusing to grant a liquor ... license (People v ... ...
  • Anderson v. Hadley, 48437
    • United States
    • United States State Supreme Court of Iowa
    • 9 Marzo 1954
    ... ... To the same effect are Perkins v. Board of Directors, 56 Iowa 476, 479, 9 N.W. 356, 357; Smith v. Blairsburg Ind. School Dist., 179 Iowa 500, 508, 159 N.W. 1027; Altman v. Independent School Dist., supra, 239 Iowa 635, 32 N.W.2d 392 ... See Massey v. City Council, supra, 239 Iowa 527, 532, 31 N.W.2d 875, 879; Smith v. Powell, 55 Iowa 215, 216, 7 N.W. 602; People ex rel. Lafferty v. Owen, supra, 286 Ill. 638, 122 N.E. 132, 133, 3 A.L.R. 447, 449. We have entertained ... ...
  • Sullivan v. Orton
    • United States
    • United States State Supreme Court of Iowa
    • 10 Mayo 1910
    ... ... Under ... previous holdings this would seem to be a waiver of the error ... if there was one. Smith v. Powell , 55 Iowa 215, 7 ... N.W. 602; Frick v. Kabaker , 116 Iowa 494, 90 N.W ... 498; Geiser Mfg. Co. v. Krogman , 111 Iowa 503, 82 ... ...
  • Massey v. City Council of Des Moines
    • United States
    • United States State Supreme Court of Iowa
    • 6 Abril 1948
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