Stone v. Miller
| Citation | 14 N.W. 781,60 Iowa 243 |
| Parties | STONE ET AL. v. MILLER ET AL |
| Decision Date | 12 December 1882 |
| Court | Iowa Supreme Court |
Appeal from Delaware Circuit Court.
THIS is a proceeding by certiorari to review the action of the board of supervisors of Delaware county, in submitting to the electors of said county the question of relocating the county seat of said county at the town of Manchester. The court adjudged that the action and proceedings of the board of supervisors, in ordering a vote upon the question of the re-location of the county seat, be affirmed. The plaintiffs appeal. The facts are stated in the opinion.
REVERSED.
J. M Brayton and I. N. Sullivan, for appellants.
Shiras Van Duzee & Henderson, C. Yoran and A. S. Blair, for appellees.
I.
The petition prays that a writ of certiorari may be granted, commanding the board of supervisors to certify fully to the Circuit Court a transcript of the record and proceedings of said board, as well as the facts relating to the matter stated in the petition, and the proceedings and evidence upon which said order for said vote was made. The judge, upon the presentation of the petition, ordered that a writ of certiorari be granted as prayed. And the writ itself commands the board to certify and return a full, complete and perfect transcript of all the matters called for by the petition and the order of the judge. In return to this writ, the board caused to be certified to the Circuit Court the petitions and remonstrances submitted, and a complete transcript of all the proceedings had before them during the pendency of, and pertaining to, the matter in question.
This transcript shows that, when the board acted upon the matter and ordered the vote, they found the following facts to exist respecting the petitions and remonstrances:
The whole number of votes under the last preced-
ing census
3,662
The number of names appearing on the petition
2,684
The number of names on both petition and remon-
strance, to be counted off of petition
500
Duplicates on petition
14
Number taken from petition by affidavit affecting
both petition and remonstrance
15
Number of names taken from petition
8
Number of aliens counted off petition
4
Number counted off by affidavit of remonstrance
7
Total number counted off from petition
548
Total number to be counted on petition
2,136
Number of names on remonstrance
2,250
Number of duplicates counted off
44
Number of minors counted off
13
Number of names counted off by affidavit of peti-
tioners
111
Total number counted off
168
Total number counted on remonstrance
2,082
Majority for petitioners
54
After the writ was served upon the board they convened and ordered that, amongst other things, the following be certified as a part of their return: "We further certify the fact to be that in striking off the 500 names from the petition, as shown by the copy of record hereto attached, we acted, first, on comparison of signatures, viz: while acting as a committee as aforesaid, we compared names and signatures on both petition and remonstrance, and when we were satisfied that the signatures were alike, by thus comparing, we made a list of such names, and they numbered 351, which we agreed should be stricken off from petition and remonstrance (we were furnished by remonstrators with a list of names which it was claimed by them were signatures of same persons on both petition and remonstrances). We next took the balance of names on such list, and which names were similar in initials, and the signatures of which we were not satisfied by comparison were made by the same person, and resorted to extrinsic evidence, such as poll-books, to see if other men by same name had ever voted in that township; the military list in assessor's books; the alien records, to see if two men by the same name had been naturalized; and the comparison of signatures by others not members of the board, and inquiries of parties outside, and not being fully satisfied ourselves that the same persons both petitioned and remonstrated, but by the aid of this outside and extrinsic evidence, resolved the doubt in favor of the remonstrance; and we further say that by this method we struck off from petition, as being on the remonstrance, in all 500 names; and we further say that without this extrinsic evidence, we would not and could not have stricken off from petition, as being on the remonstrance, but 351 names; and we further say that a re-canvas of said names, excluding all extrinsic evidence, but acting on the petition and affidavits annexed, and the remonstrance and affidavits annexed, and the comparison of signatures, we, in order to be satisfied that the same person both petitioned and remonstrated, will be compelled to find that the number of legal voters petitioning for a re-location of county seat, exceeds the number of legal voters remonstrating against a removal by 113 names, and would, therefore, be compelled to order a call as we did; we further say that duplicates were stricken off by a comparison of signatures, and the minors by extrinsic evidence. The result of re-canvass will be as follows:
Whole number on petition
2,684
Duplicates counted off by comparison of signatures.
14
Names counted off as being on remonstrance from
a comparison of signatures
351
Total counted off from petition
365
Total number to be counted on petition
2,319
Whole number names on the remonstrance
2,250
Duplicates counted off by a comparison of signa-
tures
44
Total on remonstrance
2,206
Number on petition exceeding that on remonstrance
The above tabulation is without the use of our personal knowledge, by the use of which, viz: personal knowledge of names to both petition and remonstrance, that they were not voters when petition and remonstrance were presented to us, the change will be as follows:
Number to be stricken from petition
380
To be stricken from remonstrance
80
Number on petition after all deductions
2,304
Number on remonstrance
2,170
Petition exceeds remonstrance
We further say that without the use of our personal knowledge or any extrinsic evidence or comparison of signatures, the petition will exceed the remonstrance by 434."
The plaintiff moved the court to strike from the return everything except a transcript of the proceedings of the board up to the time that the order for the submission to a vote was made. The court overruled this motion, and this action is assigned as error. At the time of the submission of the question to the board of supervisors, both parties seemed to have thought that it was competent to assail the competency of the signers of the petition and remonstrance by affidavits. Hence, affidavits were submitted upon both sides, and the board, acting upon them, counted off 22 names from the petition and 111 from the remonstrance. That this action was erroneous under the doctrine of Herrick v. Carpenter, 54 Iowa 340, 6 N.W. 574, is now conceded; still the order of the board calling an election ought not to be set aside if the number of names legally on the petition in fact exceeded those on the remonstrance. The real question is, did the board act illegally in calling an election?
If the number of petitioners was sufficient to justify the order of the board calling an election, their order must be sustained, notwithstanding the fact that they may have erred in the manner of ascertaining the number properly on the petition and remonstrance. The petition for the writ of certiorari prays that the board may be commanded to certify fully the facts relating to the matters stated in the petition, and the proceedings and evidence upon which an order for a vote was made. The matter in question simply shows upon what evidence the board proceeded, and in what manner they reached the result upon which the order was based. In our opinion, the court did not err in refusing to strike this matter from the return.
II. The petition consisted of 185 distinct petitions, to each of which was attached the affidavit of the person who procured the signatures. The affidavit to petition number one, is as follows:
[SEAL] A. S. BLAIR, Notary Public.
1. It is objected that this affidavit does not comply with the requirements of section 282 of the Code, because it states that the signers were all legal voters of Delaware county, at the time of signing. It is insisted that the affidavit should state that the signers are, at the time of making the...
To continue reading
Request your trial
-
Houser v. Chi., R.I. & P.R. Co.
... ... is denied, and it is held that a superintendent is not a fellow-servant, although he engages in the same work with the laborer; and in Berea Stone Co. v. Kraft, 31 Ohio St. 287, the same doctrine is held. These cases are cited by the respective counsel in argument, but we do not think they are ... ...
- Stone v. Miller
-
Houser v. Chicago, R.I. & P.R. Co.
... ... fellow servant, although he engages in the same work with the ... laborer; and in Berea [60 Iowa 234] Stone Co. v ... Kraft, 31 Ohio St. 287, the same doctrine is held. These ... cases are cited by the respective counsel in argument, but we ... do not ... ...