Woolsey v. Board of Supervisors

32 Iowa 130 | Iowa | 1871

Beck, J.

^stebShmeit road°unty The objections to the proceedings of the board of supervisors will be noticed in the order in which tliey are presented by the argument of plaintiff’s counsel, and require but brief consideration.

I. The description of the road, it is first claimed, is insufficient and uncertain, because the principal points through which it passes are not stated. This objection is made to the notice, petition and final order. It is not sustained by the facts. The points of beginning and termination are stated, and the line of the route indicated by intelligible reference to the lines of the congressional subdivisions of the land over which it passes, so that there can be no difficulty in tracing it. There could be no more explicit statement of the “principal points” required to be stated by Revision, section 825, and all other points through which the road passes.

2._notice, II. The notice, required by the statute to be posted by the petitioners for the road, shows that the application will be made on a certain day for the “ establishment of the road,” instead of pursuing the language of the statute, which directs that the notice shall state the time when an application will be made for the appointment of a commissioner. Rev., § 825. The language used in the notice as certainly and unmistakably expressed the object of the petitioners in the institution of the proceedings as though the words of the statute had been used. That object was the “establishment of a road.” The notice is a substantial compliance with the statute. McCollister v. Shuey, 24 Iowa, 362.

3. — proof of sumption?16'which III. The proof of the posting of notices found in the record does not show that the places where the notices were posted are in the county or township through which the road is located. Admitting that this proof is insufficient, it is not made to appear that this was all the proof before the board. It was proper for the fact that the notices were posted, to be proved .by parol evidence, and it will be presumed that due proof in that manner was made to the board, if it be not shown by the record. McCollister v. Shuey, 24 Iowa, 362.

But it is insisted that this presumption is negatived by tbe return to tbe court. Tbe auditor who certifies the return states in his certificate that no other or further proof than that returned by him was- made on this subject. But we must presume he refers to written proof found in tbe record. If be means to refer, in his certificate, to oral proof, his statement cannot be received. It would be very dangerous to permit the certificate of a mere clerk as to what was done or considered by a body of the character of tbe board of supervisors, to have the effect of overturning their proceedings, and doubly so when the clerk, as in this case, was not an officer of the board at the time of the transactions referred to and stated by him.

5M^titioners to^give secur IV. No security was given by the petitioners for the payment of the expenses growing out of their application, as Pr°vided by section 826 of the ^Revision, qq^t khig is not an irregularity of which plaintiff can complain. If the board of supervisors failed to comply with the direction of the law in this respect, plaintiff is not prejudiced or his rights in any manner affected; neither does it affect the order of the board finally establishing the road.

6. — officer: erto °admSqualification, V- The oath required by law to be taken by the commissioner was administered by the county auditor, or, as he designated himself, the “ county judge.” This officer, it is claimed, was not authorized to administer oaths. Let this be admitted (but the point we do not decide), and the fact is not an error or irregularity which will result in setting aside the proceeding. That the person who-acted as commissioner was appointed by the board is not denied, neither does it appear that he did not correctly and legally discharge his duties. - His acts are not defeated by the alleged want of power of the officer before whom he was qualified to administer oaths. Ve have-never heard of a case where such irregularity in the qualifications of an executive or judicial officer defeated his action.

i. — oontinusumption. VI. Tbe final action upon the establishment of the road was had the day following the one fixed by the board for their action. See'section 840 of the Revision, This it is contended is erroneous. It cannot be deemed that, for proper reasons, the board could have continued the consideration of the case from the day fixed to the next day or some succeeding day. The record is silent as to any such adjournment. But the presumption, which we are required to exercise in favor of the regularity of the action of that body, in the absence of a showing to the contrary, requires us to presume that, for good and sufficient cause, the final action upon the .case was, by resolution of the board, postponed to the day upon which it was had.

The foregoing consideration of the objections made by plaintiff leads us to the conclusion that the judgment of the district court must be

.Affirmed.