Smith v. Powell

• Decision Date: 14 December 1880
• Parties: SMITH v. POWELL ET AL
• Court: Iowa Supreme Court

7 N.W. 602

55 Iowa 215

SMITH v. POWELL ET AL

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.

AFFIRMED.

Phelps & De Lano, for appellants.

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

OPINION

SEEVERS, J.

I.

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 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 possible the order of the defendants might have been ignored, and they compelled to perform the duty enjoined by statute. Conceding this...