Bennett v. Hetherington

41 Iowa 142 | Iowa | 1875

Lead Opinion

Cole, J. —

The petition and exhibits are quite voluminous, and we need only state the material ultimate facts averred, to-wit: That plaintiffs are citizens and taxpayers of the county, and the defendants are officers thereof; that at the general election, in October, 1874, the people of the county voted upon .the proposition to remove the county seat from Fontanelle to Greenfield, and a majority voted in favor thereof, and unless restrained the defendants would remove the offices, etc., accordingly; that the election or voting upon such proposition was invalid, because there was no sufficient notice of the presentation of the petition for such vote, to the Board of Supervisors; that the only notice given was by a publication in a weekly newspaper, published April 2d, 9th and 16th; that the petition would be presented to the Board at their regular meeting, June 2, 1874; that the petition was then presented, and also a remonstrance which specified .the insufficient notice as one ground; that the Board then made the order that a vote be taken at the géneral election; that no order was then made for a posting of the notices of the election or vote, as provided by law; that at a special meeting of the board held on August 8, such order was made, but not till after another remonstrance had been presented and overruled by the Board; that no notice was given that such order would be applied for or made; that two of the Board of Supervisors were interested in the removal, and one had signed a bond to furnish county buildings free of expense in case of removal and had circulated petitions, etc., etc.; that sixty days’ notice of presenting the petition to the Board was not given, and plaintiffs were prejudiced thereby, since they had no full opportunity to obtain signatures to a remonstrance; that the short notice only was given for this purpose, etc., etc.

The order for injunction was allowed by the writer hereofj in view of the peculiar facts of the case, as stated in the order, and expressly for the purpose of affording a full opportunity for a hearing of the case before the entire court, and without expressing an opinion upon the questions involved.

i. AVPEAii:inSS-otmay Be iro?ii.aled I. It is here first urged by appellees’ counsel, that no right of appeal from an order allowing an injunction by a judge of this court exists under our statutes. It was held under the Eevision, Secs. 2631, 2, 3, which allowed an appeal from such order, where made “by a judge of the District Court” that an appeal to the Supreme Court did not lie from an order allowing or refusing an injunction, made by any other judge than a judge of the District Court. The Monticello Bank v. Smith, 25 Iowa, 248; Jewett v. Squires, 30 Iowa, 92; In re. Curley, 34 Iowa, 184. But the Code has changed the statute, and allows an appeal from such an order where “ made by a judge.” Code, Secs. 3163, 4, 5. This was the manifest purpose of the change in the statute, as well as the plain import of the language used.

II. It is next insisted that the notice of the presentation of the petition to the Board was insufficient, for that the statue requires, Code, “ 284, sixty days notice of the presentation of such petition shall be given by three insertions in a weekly newspaper;” while here only one insertion was made sixty days before presentation of the petition; the others were less than sixty. We pass this question, since its determination is not necessary. Its insufficiency may be pro hao vice conceded.

2. county olfboM-d ofal supervisors. III. The question next arising, upon the concession that the notice was insufficient, is what effect would such insufficiency have upon the order for the election made the Board. The action of the Board of Supervisors in determining whether the petition was “signed by at least one-half of all the legal voters in the county,” and also whether “ the notice hereinbefore prescribed has been given,” was necessarily judicial. For such, and many other purposes, the Board of Supervisors constitute a judicial tribunal having limited jurisdiction. The statute, in express language, gives to the Board jurisdiction to determine those questions. Having .jurisdiction to determine them, their decision is as conclusive as that of any other judicial tribunal, until it is reversed or set aside in some manner provided by statute.. The Board decided that the requisite number of voters had signed the petition, that the notice itself was sufficient and that it had been given or published in the manner and length of time prescribed by the statute. As we have seen, the Board of Supervisors had jurisdiction, by express statute, to determine these questions, and if they did not decide them correctly, it was an error or irregularity only, which might have been corrected either by appeal, writ of error, or certiorari, whichever the statute may authorize, but which could not render their decision void. Their decision is binding and conclusive upon any other tribunal, when assailed collaterally, until it is reversed or set aside. If the notice was not given the number of days required by law, their decision was erroneous simply, and must be corrected as other errors are corrected. Ballanger v. Tarbell et al., 16 Iowa, 491; Shea v. Quintin, 30 Id., 58. See, also, Cooper v. Sunderland, 3 Id., 114; Morrow v. Weed, 4 Id., 77; Baker v. Chapline, 12 Id., 204; Bonsall v. Isett, 14 Id., 309.

The ultimate question involved in this case was joractically decided by this court, in Ryan v. Varga et al., September Term, 1873, s. c., 7 West. Jurist, 592; 8, lb., 699. That was a case involving the validity of a tax voted in aid of a railroad, and it was held that the decision by the township trustees, that the petition was signed by the requisite number of taxpayers, was a judicial decision, and conclusive until reversed or set aside in the manner provided by law; that the tax could not be assailed on the ground that the petition was not sufficiently signed. The decision in that case as in this, might well be reviewed and corrected by certiorari; but until reversed and set aside it is conclusive. See, also, Baker v. The Bd. of Sup. of Louisa Co. (present term).

3. -.:in. equny°n: We do not deny but that the matters set up in this action are properly of equitable cognizance, and in which, upon a case made, a proper remedy may be by injunction. Collins v. Ripley, 8 Iowa, 129; Rice v. Smith, 9 Id., 570; Sweatt v. Faville et al, 23 Id., 321. But what we decide is, that since the petition shows an election ordered by the Board of Supervisors, made upon a petition and notice therefor, and vote thereunder adverse to plaintiffs they have no case for equitable relief, justifying an injunction, the order for the vote being conclusive until set aside by certiorari.

Beversed.

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Rehearing

ON REHEARING.

Cole, J. —

Since the announcement of the foregoing opinion an application in the nature of a petition for rehearing has been filed, asking that the court determine the question as to the sufficiency of the notice of election suggested in the second point of the opinion, and stating that such decision was necessary to settle the controversy between the parties and avoid further litigation.

4. notice: removal of county seat, At the time the opinion was prepared the members of the court were not entirely agreed upon the question suggested, and for that reason it was passed in the belief that ., , it was not necessary to decide it, in order to determine the controversy between these parties. Since it is made to appear that the necessity for its decision does exist, we proceed to decide it.

The question involves the construction of Code: “ Sec. 281. Sixty days notice of the presentation of snch petition shall be given by three insertions in a weekly newspaper.” * * * And the precise question is whether the three insertions must be made sixty days before the term of court, or whether it is sufficient if the first insertion is thus made and the other insertions are made in the successive weekly issues. This section prescribes the notice to be given of the presentation to the Board of Supervisors of the petition for the vote. The next section prescribes the notice of the order for the vote or eléction to be given by the board to- the people, and it enacts that they shall cause a constable to post notices of such order in three public places in each township at least fifty days before said election, and shall also publish a notice of such election in some newspaper, if there be one published in the county, for four successive weeks, the last gubUeation to be at least twenty days before said election.”

Without now entering into an elaborate discussion of the question, we may state that we are agreed in holding (but not without some doubt on • the part of the writer hereof), that since the legislature has prescribed by the last quoted section, the time which must transpire after the last publication, and has omitted such requirement from the first, the fair implication is that the legislature intended that three insertions in a weekly newspaper should be sufficient, if the first was given sixty days before the presentation of the petition. Hence, it follows that the notice given in this case was legal and sufficient. This decision of the question does not change the order that the judgment stand as

Reversed.