Richman v. Board of Supervisors, 70 Iowa 627

Richman v. Board of Supervisors

70 Iowa 627 | Iowa | 1885

BecK, Oh. J.

I. The levee built under authority of the proceedings had in this case is upon Muscatine island, a i. parties: action to resist taxa-Uou: joinder of plaintiffs, lai’ge island in the Mississippi river, which lies , . . , ’ both in Muscatine and Louisa counties. The levee extends from or near the city of Muscatine, in Muscatine county, to or near to Port Louisa, in Louisa county, a distance of about twelve miles. Four miles of the levee are in Muscatine county. Proceedings were had, in pursuance of the statute, before the supervisors of both counties, to authorize the construction of the work. Those had by the board of supervisors of Muscatine county are brought in question in this case.

II. Fifteen plaintiffs join in the action, ea®h one of whom is an owner of lands subject to assessments on account of the construction of the levee. Defendants moved the circuit court to strike the names of all the plaintiffs, .except one, from the petition, for the reason that they are misjoined as plaintiffs. The motion, we think, was rightly overruled. Code, § 2545, provides that “all persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except where it is otherwise provided in *629tliis Code.” The subject of the action is the proceedings of the board of supervisors authorizing the construction of the levee. All of plaintiffs have an interest in this subject and in the remedy sought. Their interest is alike, though not equal. The remedy sought is a judgment declaring the proceedings void. One judgment will afford the relief asked by each plaintiff. Indeed, it would seem that the adjudication to the effect that the proceedings are void ought to be regarded as determining the illegality and invalidity of these proceedings as to the whole world, and render them incapable of enforcement. But, be this as it may, it is certain that the plaintiffs have a common interest in the subject of the action and in the relief sought therein; they may therefore join as plaintiffs. See Skiff v. Cross, 21 Iowa, 459; Brandirff v. Harrison Co., 50 Id., 164. Independent School-dist. Graham Tp. v. Independent School-dist. No. 2, Id., 322, and Bort v. Yaw, 46 Id., 323, are unlike this case, inasmuch as the plaintiffs in the respective cases were not interested alike in the relief sought. Each plaintiff sought distinct relief.

III. A motion to quash the writ. of certiorari, on the ground that it does not require the defendants to certify the 2. cektior-uve "writ;60 error without prejudice, facts in the case, requiring nothing more than the records, was overruled. The defendants did certify ail the tacts they deemed material, and the case was tried thereon. Assuming that the form of the writ is erroneous, yet, as the defendants brought for review all the facts before the court which were considered, no prejudice resulted en account of the error.

IY. Counsel for defendant think that the circuit court did not adjudge that the defendants exceeded their jurisdic-3. practice court terror not objected to below. tion, and that the only illegality found by the judgment pertains to the levy of the assessment, "L ° ; , ,, , _ _ , , Ihe record before us clearly shows that the circuit court did hold that the proceedings were void for the reason that they were illegal, and in excess of the authority *630of the supervisors. If the judgment does not conform to this adjudication, defendants, having failed to ask for the correction in the court below, cannot now complain. It may, upon affirmance of the case, be corrected so as conform to the adjudication, to the effect that the supervisors exceeded their jurisdiction.

Y. In our opinion, the record before us fails to show that defendants had jurisdiction,, and in the absence of such 4. levees: jurisdiction of hoard of presumption. showing the law presumes that they acted with- . ... ™ out lunsdiction. Chapter 2, tit. 10, of the Code, (sections 1207 — 1216,) and chapter 44, Acts Nineteenth General Assembly, confer authority upon the supervisors of the counties to cause levees to be constructed. Code, § 1208, provides that, in order to empower the board of supervisors to exercise such authority, “ a petition signed by a majority of persons resident in the county owning lands adjacent to such improvements, shall be first filed in the office of the county auditor, setting forth the necessity of the same, and the starting point, route and termini.” The section contains various other provisions which need not be here recited. Section 1209 provides that “ the supervisors, at the session set for the hearing of said petition, shall, if they find the preceding section to have been complied with, proceed to hear and determine said petition.” A consideration of these sections and others of the statute leaves no doubt in the mind that the petition of the character, and signed by the residents interested in the improvements, as prescribed by section 1208, is a jurisdictional matter. Unless the requirements of these sections are complied with, the supervisors can obtain no jurisdiction. The petition signed by a majority of residents interested in the work is the essential foundation and support of the jurisdiction of the supervisors. The reason for the requirement is obvious. The exercise of the authority conferred upon the board involves heavy and often oppressive assessments upon lands. The law intends to withhold from a few interested persons the power *631to set in motion the machinery of proceedings which would result' in burdening others with taxes. The supervisors can acquire no jurisdiction in the absence of a petition of a majority of the residents interested in the improvements. There is nothing in the abstract before us showing that the supervisors found or adjudged that the petition was signed by the required number of residents who are interested in the improvements, nor was proof upon that point submitted to the court below. The supervisors constitute a board, — a court of special and limited j arisdietion. In the absence of a showing by the record of the board, or in some other manner authorized by law, no presumption will be exercised of the existence of the jurisdictional facts necessary to show that the supervisors acquired authority to act. We cannot presume the existence of facts upon which their jurisdiction wholly depends. See State v. Weimer, 64 Iowa, 243; State v. Berry, 12 Id., 58; Cooper v. Sunderland, 3 Id., 114; Morrow v. Weed, 4 Id., 77.

YI. Counsel for defendant, relying upon City of Burlington v. Gilbert, 31 Iowa, 356, insist that plaintiffs cannot signing161 remonstrance. this proceeding, object to the assessment, for the reason that they signed the petition for the improvemen¿_ But the abstract fails to support the fact upon which this position is based. It does not appear that plaintiffs were petitioners. One of them signed the petition, but afterwards signed a remonstrance. He must be regarded, not as a petitioner, but as a remonstrant.

YII. It is claimed that the record of the proceedings of the board of supervisors shows an adjudication that compli-6._._. Roardasto petitioners, anee was had with the law as to the number of petitioners. The petition is based upon a record in which the following language is found: “ And it appearing to the board that the law has been complied with in relation to the appointment, notices, etc.” This language cannot be understood as applicable to the petition. The enumerated subjects, “ appointment” and “notices,” do *632not include the petition, and the “ etc.” fails explicitly to refer to the petition; and, applied in its most general sense, the language fails to express the thought that the petition is referred to by the record. The facts of this case distinguished it from Ryan v. Varga, 37 Id., 78.

Till. It is next insisted that under chapter 121, Acts Seventeenth General Assembly, § 1, a petition signed by a 7---: work in two comities. majority of the residents interested in the . ' . . improvement is dispensed with, m cases where the improvement extends to more than one county. This section lias no such force. It simply prescribed proceedings where “a petition * * * has been presented,” to the supervisors of more than one county, for work extending through their respective counties. The section clearly prescribed duties that shall be performed after the petition required in the preceding enactment has been presented.

IX. We conclude that the abstract before us shows that defendants acted without jurisdiction, and that the assessments 8. practice cerHorariV judgment and other acts done by them are void. We reach this conclusion upon grounds different from those upon which the court below based its judgment. But with the reasons of a judgment we have nothing to do; we can only inquire whether the judgment be right. In our opinion the judgment of the circuit court is correct.

The points we have considered are decisive of the case. Others discussed by counsel need not be considered.

AFFIRMED.