Steeves v. Town of New Market
| Decision Date | 05 August 1938 |
| Docket Number | 44382. |
| Citation | 281 N.W. 162,225 Iowa 618 |
| Parties | STEEVES et al. v. TOWN OF NEW MARKET et al. |
| Court | Iowa Supreme Court |
Appeal from District Court, Taylor County; H. H. Carter, Judge.
This is an action in certiorari testing the validity of a special election held on February 11, 1936, for the purpose of voting upon a municipal electric light and power plant. The lower court held the election valid and annulled the writ. Plaintiffs appeal.
Reversed and remanded.
Stipe Davidson & Davidson, of Clarinda, for appellants.
Turner & Turner, of Clarinda, for appellees.
On February 11, 1936, a special election was held in the town of New Market, Iowa, for the purpose of voting upon a municipal electric light and power plant under the Simmer Law, Code 1935, § 6134-d 1 et seq., at a cost not exceeding $55,000. The town hall was used as the polling place for the election. The record in the case shows that all necessary preliminary proceedings and posting of notices for said special election were had. The record also shows that judges and clerks of the election were duly appointed and qualified by the city council and that the special election was held upon the day advertised.
In their petition, appellants allege that the poll-books and ballots were never turned over or filed with the town clerk that the results of the election or tabulations of the votes were not turned over to the town clerk; that there was no canvass of the votes by the town council; that there was no record made by the town council or the town clerk in the proceedings of the council showing any tabulation or record of the votes or the result of the election. Plaintiffs further allege that if the defendants or any of them claim to have any figures, data, or records with regard to the result of the special election, the same were not properly obtained, made, filed, or preserved within the time or by the proper officers as required by law.
Plaintiffs also allege that the mayor and town council have exceeded their proper jurisdiction and are otherwise acting illegally in their effort to erect and establish a municipal electric light and power plant in defendant town.
Plaintiffs' petition for a writ of certiorari was filed January 5, 1937. The writ was issued as prayed for and was returnable on January 26, 1937. By the writ defendants were ordered to certify and return fully to the district court of Taylor County on the 26th of January, 1937, a transcript of the records, proceedings, and facts concerning such special election purported to have been held on February 11, 1936, including all proceedings, unused, spoiled, and sample ballots, pollbooks, minutes, and any and all records of such special election as fully and completely " as the same are now before you." Under this writ the defendants were ordered to certify all records of the town of New Market in reference to the special election referred to as fully as the same appeared upon the records and proceedings of the town of New Market at that time.
The evidence in this case shows without dispute that at the time the writ was issued and served many and practically all of the legal requirements as to counting, preserving the ballots, announcing the results of the election, canvassing the returns, etc., were not complied with. The return to this writ was not filed until February 25, 1937. Although this return shows that all proceedings up to and including the day of election were had in the manner provided by law, the return and the evidence shows that no record whatever was made by the town council showing a canvass of the election returns until February 12, 1937, a year and a day after the election, at which time the membership of the town council had changed. At that time a resolution by a new town council was adopted declaring the special election carried. The lower court confirmed the action of the town council in declaring the election valid, and annulled the writ; hence the appeal.
One of the errors complained of is that the then town council and its officers did not comply with the order of court to file a return of the transcript of the record of said special election as it appeared on the record of the council proceedings at the time the writ was issued.
This is an action in certiorari and the illegality complained of by appellants is that at the time of the filing of the return, the town was acting illegally because the records of the town and the evidence in the case wholly fail to show that all steps required to be taken after an election had not been taken in this case, and therefore the election was not complete. On the contrary, the return made by the town shows that none of the statutory requirements after the election were taken until more than a year after the election.
Originally evidence outside the record could not be introduced for the purpose of determining whether or not the lower tribunal acted illegally or without jurisdiction. Everett v. Cedar Rapids & M. R. R. Co., 28 Iowa 417; Smith v. Board of Supervisors, 30 Iowa 531; Jordon v. Hayne, 36 Iowa 9.
Under our present statute, however, section 12464 of the Code of 1935, other evidence outside the record can be introduced for the purpose of showing whether or not the lower tribunal acted within its jurisdiction. This statute provides: " When full return has been made the court must proceed to hear the parties upon the record, proceedings, and facts as certified, and such other testimony, oral or written, as either party may introduce, and give judgment affirming or annulling the proceedings in whole or in part, or, in its discretion correcting the same and prescribing the manner in which the parties or either of them shall further proceed." (Italics ours.)
Under this statute we have held that other evidence may be permitted. Tiedt v. Carstensen, 61 Iowa 334, 16 N.W. 214; Rafferty v. Town Council, 180 Iowa 1391, 164 N.W. 199; Hatch v. Board of Supervisors, 170 Iowa 82, 152 N.W. 28; Blodgett v. McVey, 131 Iowa 552, 108 N.W. 239. Under this statute it has been held that in certiorari proceedings the district court is not limited to the actual returns in determining whether or not the inferior tribunal acted without jurisdiction or otherwise illegally; and other evidence bearing on that question is admissible. Lerch v. Short, 192 Iowa 576, 185 N.W. 129; Fronsdahl v. Civil Service Commission, 189 Iowa 1344, 179 N.W. 874. See, however, Dickey v. Civil Service Commission, 201 Iowa 1135, 205 N.W. 961, where this court held on appeal to the Supreme Court in certiorari proceedings that this court is not permitted to review questions or evidence pertaining to matters not before the inferior tribunal.
The inferior tribunal in this action was the town council, and the undisputed evidence shows that, when it attempted to contract for the plant, the necessary steps to complete the election had not been taken.
The statutory proceedings required to be taken were not in fact taken at the time required by statute, and were therefore necessarily omitted from the record of the council's proceedings, until inserted therein about one year later when they were antedated. The council then attempted, more than a year after the election, to take the steps which the statute requires to be done immediately after the election. It will hardly do to say that the requirements of all the statutes referred to in the following division of this opinion can be violated and then after the lapse of a year can be supplied by an entirely different set of officials than those in office the previous year.
It might be claimed that, under some circumstances where minor requirements are not complied with, the election might be complete, but where none of the statutory requirements had been complied with at the time the council acted and when the writ was issued, it must be held that the election was never complete and the council had no jurisdiction. To hold otherwise would be permitting a town council by its inaction to suspend the statutory laws of the state. We are constrained to hold this cannot be done.
Assuming, however, for the purpose of argument that it could be done, which we do not concede, and that evidence outside the record might be considered as tending to establish the jurisdiction of the lower tribunal, appellants further contend that such jurisdiction has not been established by such evidence as the record shows that the election was not complete because of a failure on the part of the town and election officials to comply with the statutory requirements relating to elections as now referred to.
1. Section 840 of the Code of 1935 provides that when the poll is closed the judges shall forthwith and without adjournment: " Publicly canvass the vote, and credit each candidate with the number of votes counted for him."
The record in this case shows without dispute that the judges of election did not publicly canvass the votes as required by the foregoing statute. Under the statute the town clerk was required to, and the evidence shows he did, deliver the ballots to the judges of election. The record also shows that the town clerk, to whom the election officials were required to return the ballots, and several other citizens and electors of the town were not permitted to remain in the polls to witness the count.
" Where the statute requires that the count shall be public, it is unlawful to count the ballots in a private room from which bystanders are excluded." 20 C.J. 191, section 240; United States v. Badinelli, C.C., 37 F. 138; Norton v. State, 5 Ga.App. 596, 63 S.E. 666; Bernardo v. Rue, 26 Cal.App. 108, 146 P. 79; Riddell v. Childers, 156 Ky. 315, 160 S.W. 1067.
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