132 Iowa 38 | Iowa | 1906
In a motion .submitted with the case, the defendant asks that the petition for a writ of certiorari be dismissed, and the writ be quashed; but in the main the grounds urged in the motion are such as may be considered in passing upon the merits of the case, involving the legality of defendant’s action in making the portion of the order which restrains the county of Winneshiek and its board of supervisors and auditor from using the voting machines referred to in the action of the board at the November election. It is urged, however,, that .the plaintiffs in this ..action, having
It is also contended by learned counsel that relators had their remedy by motion to dissolve, and by appeal on final judgment. Prohibition is an extraordinary remedy, and will not lie where a party claiming it has adequate
In our own cases, we find nothing to indicate that an appeal is a speedy and adequate remedy, where the question is as to want of jurisdiction to make the order complained of. Indeed, it is a justifiable inference, from those cases where the question of the adequacy of the remedy by appeal has been considered, that such remedy would not preclude resort to certiorari, if the jurisdiction of the subject-matter were the question involved. See State v. Schmidtz, 65 Iowa, 566; Abney v. Clark, 87 Iowa, 727; Callanan v. Lewis, 79 Iowa, 452. We are clear that, in this case at least,-the remedy by appeal, to which plaintiff might have resorted, was not such1 a speedy and adequate remedy as to preclude his resort to this proceeding by certiorari.
That courts of equity cannot interfere by injunction to protect a claimed political right is too well settled to require extended discussion. A few references to illustrations found in adjudicated cases will show the reasonableness and propriety of this rule. In Fletcher v. Tuttle, 151 Ill. 41 (37 N. E. 683, 25 L. R. A. 143, 42 Am. St. Rep. 220), tbe question was as to tbe jurisdiction of a court of equity to grant an injunction to prevent tbe giving of election notices, or the certifying of nominees for districts created by an apportionment act which was claimed to be unconstitutional, and the court bolding that an injunction could not be granted for the protection of a political, as distinguished from a civil or property, right, used this language: “ Tbe complainant is a legal voter and a candidate for a particular elective office, and by his bill be is seeking tbe protection and enforcement of his right to cast bis own ballot in a legal and effective manner, and also bis right to be such candi
In the case of State ex rel. McCaffrey v. Aloe, 152 Mo. 466 (54 S. W. 494, 47 L. R. A. 393), already referred to, involving the right of a court of equity to enjoin the entrance of a person to office and to declare his title invalid, this language is used: “ The real and only purpose of the suit in the circuit court was to bar the entrance to the office of the board of election commissioners by injunction, and to obtain a decree of a chancery court, declaring relator’s title to the office invalid. This is a subject over which a chancery court has no jurisdiction. The courts of law are open to all per
The conclusion is inevitable that, so far as the order of the lower court restrains the use of voting machines authorized by the board of supervisors to be used at the November election, it is beyond the jurisdiction and power of the court to make, and is void.
It is urged by counsel that the machine adopted byf the board of supervisors has not been approved by the commissioners provided for in Code Supp. 1902, sections 1137c, 1137d. But they admit that the commissioners did approve of this very machine; the real claim now made being that such approval was prior to the recent constitutional amendment providing for biennial elections, and prior to the enactment of the recent statute striking the circle from the Australian ballot. The biennial election amendment makes no change in the method of conducting elections, and the statute referred to does not amend or repeal the provisions as to the use of voting machines. We see no reason for saying that ■ a vote cast by means of an authorized machine will not be as valid and effectual as one cast by Australian ballot in accordance with the latest statute on the subject.
It is claimed that the machine adopted has not sufficient capacity for the number of candidates to be voted for in 1908, when presidential electors must be chosen; but this suit relates to the election of 1906, and the lower court was not called upon to determine the sufficiency of the machine for 1908. So far as the validity of the order preventing the use of the machine at the coming election is involved, it is wholly unnecessary to discuss the validity of the contract between the county and the voting machine company. That is left for determination in the lower court. The use of the machine under the adoption thereof by the board of supervisors for trial (the validity of which is not questioned) cannot possibly fasten upon the county any contract which the board of- supervisors had no authority to make, or did not in fact make.
In conclusion, we need only reaffirm the proposition already announced, that the lower court had no power or ju
The part of the order of the lower court brought before us for review is therefore annulled.