Dunham v. Fox

Dec 10, 1896
Reporters:
,
Before:
Granger
Granger, J:

I. Thе cause was submitted on an agreed statement of facts, from which it appears that the defendants are the trustees of Boyеr township; that a petition was presented to the board to consolidate the road districts of the township into one highway district; that the names on the petition represented a majority of the voters of the township; that a remonstrance was also presented with the petition, on which were names appearing on the petition; that, deducting from the names on the petition thosе appearing on both the petition and the remonstrance, the remainder would not be a majority of the voters of the township; that the board disregarded the remonstrance, and treated the petition as containing a majority of the voters, and made аn order consolidating the road districts as prayed. The district court adjudged the proceedings, by which the districts were consolidatеd, void.

*1331 *132II. It is thought the plaintiffs have no such interests ‍‌‌​​‌​‌‌‌‌‌​​​‌​​‌​​‌​​​​​‌‌‌​‌‌‌‌‌‌‌​‌​​‌​‌​‌‌‌‍as will enable them to institute this proceeding. *133In addition to the above, it is admitted that the plаintiffs, three in number, are legal voters and taxpayers in Boyer township. As the order of consolidation affects every road district in thе township, it must affect their interests. It is true that it does not appear that a legal consolidation would be to their prejudice оr injury. The objection made to the consolidation is not that it will result to the prejudice or injury of any persons because of inexpediency, but because it is unlawful. It hardly needs argument to show that the change in the road districts, contemplated by the order, if put into effect, will be to the prejudice of any taxpayer if the order is vóid, for the effect is to abandon the present districts as to officers, and all the details of their operations, and put in operation a system not authorized, and hence one likely to be sеt aside at any time. It would seem that any citizen and taxpayer could protect himself against such contingencies. In Van Wagenen v. Supervisors, 74 Iowa, 716 (39 N. W. Rep. 105), the question of a right of a taxpayer to maintain the suit was not expressly decided, because not raised; ‍‌‌​​‌​‌‌‌‌‌​​​‌​​‌​​‌​​​​​‌‌‌​‌‌‌‌‌‌‌​‌​​‌​‌​‌‌‌‍but a suit was so prosecuted by a taxpayer under circumstances as open to question as this. In Collins v. Davis, 57 Iowa, 256 (10 N. W. Rep. 643), a certiorari proceeding, the question of the interest essеntial to maintain such suit is discussed, and kindred cases are cited and considered; and the rule of the*case clearly justifies the right of these plaintiffs to maintain this action. Such a right has full support in reason.

2 III. The statute permits the writ to issue in all cases where an inferior tribunal, board, or officer exercising judicial functions is alleged to have exceeded its proper jurisdiction, ‍‌‌​​‌​‌‌‌‌‌​​​‌​​‌​​‌​​​​​‌‌‌​‌‌‌‌‌‌‌​‌​​‌​‌​‌‌‌‍or is otherwise aсting illegally. It is urged that the board of trustees was not exercising judicial functions, and hence, that the proceedings will not lie. The law under which *134it was acting is section 4, chapter 200, Acts Twentieth General Assembly, as follows: “The board of township trustees may, at their regular meeting in April, 1884, or at any regular meeting thereafter, on petition of the majority of the voters of said township, consolidate the several road districts in the township into one highway district; provided, however, that nothing herein contained shall be construed to prevent the trustees from again sub-dividing the township into sub-districts and returning to the present plan of road work, at any regular April meeting, after two years’ trial of the plan provided by this act.” It will be seen that the statute is not mandatory, but permissive only. It devolves on the board a discretionary duty аfter jurisdiction once attaches. The board is to consider the needs of the township, and grant or refuse the prayer of the рetition. Such an act is so far judicial as to come within the provisions of the Code authorizing certiorari proceedings. It makes no differenсe that a civil township is not a municipal corporation, and only a sub-division of a county. The trustees are no less a board, with duties both ministerial and judicial, and subject, when of the latter kind, to review and correction. The law permits the writ to issue ‍‌‌​​‌​‌‌‌‌‌​​​‌​​‌​​‌​​​​​‌‌‌​‌‌‌‌‌‌‌​‌​​‌​‌​‌‌‌‍“where an inferior tribunаl,board,or officer exercising judicial functions is alleged to have exceeded its proper jurisdiction.” Code, section 8216. Thе act, and the section in question, denominates the trustees “the board of township trustees,” so that it comes within the letter of the law.

*1353 *134IV. Thеre is a claim that the board had no authority to consider the remonstrance, but should have taken the petition as presentеd. Reference is made to some provisions of our law, wherein the right to remonstrate is granted in. express terms, and it is argued that, wherе no such right is granted, it does not exist. There is a provision in the law as to petitioning boards of *135supervisors for the re-location of сounty seats, that remonstrances may be also filed, and defining by whom they may be signed. Nothing in the language granting such a right justifies the inference thаt it was intended thereby to deny that right in matters disconnected from the subject in which the right is given, if it otherwise existed. It does not seem to be the purpose of the act, under which the board proceeded, to permit a consolidation, except a majority of thе voters ‍‌‌​​‌​‌‌‌‌‌​​​‌​​‌​​‌​​​​​‌‌‌​‌‌‌‌‌‌‌​‌​​‌​‌​‌‌‌‍desire it, and express their desire in the manner designated. The petition presented was signed by eighty-nine voters, of which forty signed the remonstrance, thereby indicating that they had changed their minds, and did not desire the eonsolidation. We think that, before action, petitioners had the right to, by remonstrance, express to the board the fact that they did not desire to be regarded as petitioners. This сonclusion is sustained by the following authorities: State v. Board of Supervisors of Polk County (Wis.) (60 N. W. Rep. 266); Slingerland v. Norton (Minn.) (61 N. W. Rep. 322); Black v. Campbell, 112 Ind. 122 (13 N. E. Rep. 409); State v. Eggleston, 34 Kan. 714 (10 Pac. Rep. 3); Hays v. Jones, 27 Ohio St. 218; Dutten v. Village of Hanover, 42 Ohio St. 215; State v. Commissioners Nemaha County (Neb.) (4 N. W. Rep. 373). These cases all sanction the right of a petitioner to withdraw his name from the petition, and in some the right is authorized, in terms, by remonstrance. In none is there an intimation that it could not be’ done in that way. In some of the casеs it was done in other ways, and the right sustained. It is hardly to be questioned that the signing of a remonstrance after signing a petition would have the effect of a withdrawal in the absence of explanation. It is to be understood that the remonstrance came with the petitiоn to the board of trustees, so that it became operative in determining the question *136oí jurisdiction. Had the trustees obtained jurisdiction bеfore the remonstrance was presented, the case: would come within the rule of Seibert v. Lovell, 92 Iowa, 507 (61 N. W. Rep. 197), and the remonstrance could only be сonsidered on the merits of the application. With our conclusion as to the law, under the facts as agreed, the board of trustees was without jurisdiction, and its act was void. — Affirmed.