| Iowa | Jul 5, 1911
Four thousand eight hundred thirty-two electors voted at the general election for the year 1910 in Winneshiek County. On that day statements of general consent to the sale of intoxicating liquors in said county were circulated, and something like 3,026 names were secured. These statements were kept in circulation until November 28, 1910, when the same were filed with the county auditor. At that time the statements contained 3,425 names. These statements were filed by Otto Drexel and Henry Potratz, appellants herein. Immediately upon the filing of these statements, the auditor issued a notice to all parties of the filing thereof, and that the board of supervisors would canvass the same on December 12, 1910. This notice was published as required by law; the dates of publication being November 29th, November 30th and December 1st, respectively. On November 25th there were filed in the auditor’s office 51 withdrawal sheets, containing the names of 424 persons who had previously signed the statements of consent. It is claimed that the statements of consent contained the names of 40 persons who did not, according to the poll list, vote at the last preceding general election; that six of the signatures upon the statements were duplicates; and that 88 of the signatures to the statements of consent were of persons whose names were not upon the poll lists. Of the signatures on the withdrawal
On Lanuary 9, 1911, Lemon, Willett, and Thompson, appellees herein, filed with the clerk of the district court a bond in the sum of $i,000, the penalty being fixed by said clerk, the said bond being filed under the provisions of section 2450 of the Code, to which we shall presently make further reference. And on the same day said parties filed in the clerk’s office a general denial of the sufficiency of the statements of consent. Thereupon, and on the same day, the county attorney served notice of appeal upon Otto Drexel and Henry Potratz, which was filed in the clerk’s office, and in response thereto Drexel and Potratz filed a cost bond in the sum of $1,000. When the case reached the district court, Drexel and'Potratz filed a motion to dismiss the appeal because (1) of insufficiency of the bond given by Lemen et al.; (2) because the conditions thereof were' not as required by law; and (3) because the bond was never approved by any one, and upon other grounds not - necessary to be stated at this time. This motion was overruled, and from the record it appears that thereafter the statements of consent, with the withdrawals and other documentary evidence before the board, were filed in the district court, together with the order of the board of supervisors made upon the canvass of the petition. Thereupon the case went to trial in the district court upon this documentary evidence and certain oral testimony offered on either side,
It is ordered, considered, and adjudged by the court that the petition of consent in issue in this appeal does not contain, the number of names required by law, but that there should be deducted therefrom the names of all signers thereon whose names do not appear upon the poll lists — 31 names; also duplicate names of persons whose names appear more than once upon the petition of consent — 5 names; and also the names of voters who voted at the general election in Winneshiek County, at the election in 1910,' and signed the petition of consent, and who also signed the withdrawal list — 380 names; and it is further adjudged by the court that after making such deductions, aggregating 416, the names of but 62.2723 percent of the legal voters who voted at the last preceding general election signed said petition of consent; and it is adjudged by the court that said petition of consent is insufficient. It is further adjudged by the court that the finding of the board of supervisors made thereon be, and the same is hereby, set aside and declared null and void and of no effect. Judgment against Otto Drexel and Henry Potratz for costs.
From this order and judgment, Drexel and Potratz appeal.
The entire record ■ as made in the district court has been certified to us in its original form. It is very voluminous; but we do not find it necessary to examine it* in its entirety. The questions relied upon for a reversal may all be determined without reference to some of the disputed questions of fact. Indeed, as now presented, the questions are largely of law, and as stated by counsel for appellants are as follows:
(1) The court erred in holding that a bond with a penalty limited to a fixed amount is a sufficient bond for the costs, as required by Code, section 2450. . . . (2) The court erred in holding that a bond which is satisfied by paying the amount of the costs to the appellees personally, who .under the statute need not be parties in interest, is ‘a sufficient bond for the costs,’ as required by Code, section 2450. . . . (3) The court erred in hold
This section has reference to two- bonds — one to be given by a citizen, or citizens, of the county who challenge the finding of the board, which shall be “a sufficient bond for cost’s,” and the other a bond from the person, or persons, filing the statements of consent conditioned to pay the costs of hearing in the district court, in a sum to be fixed by the clerk. The bond given by the citizens in this case reads as follows:
The penalty in the 'bond was fixed by the clerk of the district court, and bore this indorsement, signed by said clerk: “The within bond filed and sureties therein approved by me this 9 th day of January, 1911. Olai Nallevang, Clerk of the District' Court.” The sureties upon the bond duly qualified as provided by statute, and the appellants from the finding made by the board made this recitation in the denial filed by them: “We further allege and show that we have filed with the clerk of the district court of said county a bond for the costs, as by law provided in section 2450 of the Code of Iowa.”
Many objections are made to this bond. It is said that it is invalid because of the penalty fixed; that under the law there should have been no limitation, but that the bond should have been simply to pay the costs. Again it is argued that if a penalty is required it should have been
A careful reading of the statutes meets these objections. The statute says a “sufficient bond” for costs. Does this mean that there shall be no penalty in the bond? and that it should unconditionally provide for the payment of all costs? We think not. The words “sufficient bond” mean nothing more than an adequate one, and have no reference, as a general rule, to the conditions to be embodied in the instrument. Whether or not it is equal to the ends proposed must be determined by some one, .and this must be either the court, the county auditoz-, or the clerk of the district court. If the court, then we feel quite sure that the district court was justified in holding it adequate. If by the clez’k of the district court, then, as the clerk fixed the penalty, the remedy, if that 'be too small, is not by znotion to dismiss; and if by the county auditoz’, 'then there is a defect in the procedure, which might perhaps be tz’eated as jurisdictional, although we make no pronouncement upon that proposition at this time. We think, howevez-, that the fair construction of the statute is that the pezzalty in the bond shall be fixed by the clerk of the district court, and the bond filed with and approved by him. No graznmatical rules are stz’-ained by such a construction, azzd the entire section seems to contemplate the filing of all papers with the clerk of the district court, after a finding by the board that the statements of consent are sufficient. Many authorities seem to hold that a bond without any penalty does not amount to a statutory bond (Insurance Co. v. Lemmon, 117 Iowa, 691" court="Iowa" date_filed="1901-05-16" href="https://app.midpage.ai/document/spring-garden-insurance-v-lemmon-7110114?utm_source=webapp" opinion_id="7110114">117 Iowa, 691), although it may be treated as a good covenant or agreement. But a bond, such as the one in suit,
Appellants’ counsel cite some cases from other states in support of their contention that a bond, such as was here given, is not a compliance with the statutes of these states. Whatever may be said of these decisions, it does-not appear that in any of them there was a statute like section 357 of our Code, reading as follows: “No defective bond or other security or affidavit in any case shall prejudice the party giving or making it, provided it be so rectified, within a reasonable time after the defect is discovered, as not to cause essential injury to the other party.” Even though the bond should have been without penalty, it is not void, and there was no occasion to amend it for the reason that the penalty fixed was entirely adequate. No surety could defend, because a penalty was fixed in the bond, even if that penalty were fixed by one without authority. It was a sufficient bond. However, we are disposed to hold that a penalty should be fixed, and that the clerk of the district court was the proper official to do it.
II. The complaint as to the obligees named in the condition of the bond is' without merit. Code, section 356, reads as follows: “Such security, when not otherwise directed may, if for the benefit of individuals, be given to -the party intended to be secured thereby; if in relation to the public matters .concerning the inhabitants of one county or part of a county, it may be made payable to the county; if concerning the inhabitants, of more than one county, it may be made payable to the state, but a mere mistake in these respects will not vitiate the security.” See, also, Charles
The judgment must therefore be, and it is, affirmed.