85 Iowa 596 | Iowa | 1892
Lead Opinion
On the first day of June, 1891, a petition was presented to the hoard of supervisors of Harrison county, asking that the question of removing the county seat from Logan, and relocating it at Missouri Yalley be submitted to a vote of the citizens of that county at the next general election. At the same time a remonstrance against relocation was presented. Pending a consideration of the petition and remonstrance and accompanying proofs by the board of supervisors, and before it hadmade any finding or announced any conclusion, the plaintiffs presented their petition in this action to a judge of the district court in and for Harrison county, asking that further proceedings on the petition for a relocation of the county seat be enjoined. The plaintiffs are citizens and taxpayers of Harrison county, who are interested in the county seat and opposed to the proposed relocation. The defendants are members of the board of supervisors, and citizens who petitioned for the relocation. The grounds alleged for the relief demanded were that the petition was fraudulent, containing the names of many fictitious persons, or of persons who were minors, or for other reason not entitled to vote; that a member of the board of supervisors had full knowledge of the fraud, and was conniving with persons interested in the proposed relocation to have the order desired by them made, and that the board of supervisors, on account of its limited jurisdiction, had not the power to investigate the fraudulent character of the petition. A temporary writ of
I. The .provisions of the Code in regard to the relocation of county seats, so far as material to a determination of the questions presented to us for consideration, are as follows:
*599 “Section 281. Whenever, the citizens of any county desire a relocation of their county seat they may petition their hoard of supervisors respecting the same at any regular session.
“ Section 282. Such petition shall designate the place at which the petitioners desire to have the county seat relocated, and shall be signed by none but legal voters of said county, and shall be accompanied by affidavits sufficient to satisfy said board that the signers are all legal voters of said county and that the signatures on said petition are all genuine.
“Section 283. Remonstrances signed by legal voters of the county only, and verified in like manner as the petition, may also be presented to the board. If the same persons petition and remonstrate, they shall be counted only on the remonstrance; and if a greater number of legal voters remonstrate against the relocation than petition for it, no election shall be ordered.
“ Section 284. Sixty days’ notice of the presentation of such petition shall be given. * * *
“Section 285. Upon the presentation of such petition, signed by at least one-half of all the legal voters in the county, as shown by the last preceding census, if the notice hereinbefore prescribed shall have been given, the board shall order that at the next general election a vote shall be taken between said place and the existing county seat. * * *
“ Section 287. If the point designated in the petition obtain a majority of all the votes cast, the board of supervisors shall make a record thereof, and declare the same to be the county seat of said county, and shall remove the records and documents thereto as early as practicable thereafter.”
The plaintiffs contend that the total number of voters in Harrison county, as shown.' by the last census, was five thousand, one hundred and thirty-seven; that the total number of voters in the county in June, 1891,
It was held in Herrick v. Carpenter, 54 Iowa, 340, that the decision of the board of supervisors in regard to the sufficiency of the petition to authorize an order submitting the question of relocation to a vote of the people must be based upon the affidavits filed with the petition and remonstrance, and possibly upon matters within the knowledge of the board. It is insisted by the appellants that under the doctrine of that case the board has no power to investigate the frauds alleged, and render a decision according to the real merits of the case; therefore, that the power must exist in courts of equity to investigate the facts, purge the petition of fraudulent names and render such a decree as would do justice to all the parties in interest. The case, as presented by the appellants, certainly contains much to
There is nothing in the character of such proceedings as that which is sought to be controlled in this action to except them from the general rules. The action of the board in considering the petition and submitting the question of relocation to a vote of the people is preliminary in its nature and effect. The question of chief importance is finally determined by the voters of the county. The general assembly might, have provided that no remonstrance should be considered, but that the board should act upon the petition alone, or it might have dispensed with the petition, and authorized the board to submit the question on its own motion, or it might have provided other means for submitting the question than those which now exist. But it has deemed it proper to require a petition signed
Dissenting Opinion
(dissenting).
I am unable to concur with the opinion of the majority of the court in the conclusion they reach in this case. I regret that the necessity for an immediate decision, owing to the important public interests involved, will prevent me-from doing more than indicating very briefly the grounds of my dissent. The petitioners aver, in substance, that in June, 1891, when the petition for removal was presented to the board of supervisors, there were not to exceed five thousand, five hundred voters in Harrison county; that the petition for relocation appeared to be signed by five thousand and twenty-six voters of the county; that nearly two thousand, five hundred voters of the county did not sign the petition; that of those who did sign it over one thousand also signed the remonstrance, and hence could not be counted on the petition; that the remonstrance was signed by over three thousand, five hundred voters. It is conceded in the opinion that “there is evidence which tends strongly to support these claims,’7 and that, if they are well founded, it is apparent that “a gross fraud was attempted to be perpetrated upon the board of supervisors and the people of Harrison county.”