Jordon v. Hayne

Beck, Ch. J. — Upon the questions involved in the case we reach the following conclusions, which we briefly state: I. The defendants insist that certiorari is not the proper proceeding in which the questions raised by the petition may be determined. We think differently. The action of the township trustees was of a judicial or quasi judicial character, and whether it was illegal or without jurisdiction may be determined in this proceeding. See McCord v. High, 24 Iowa, 345; Edgar v. Greer, 14 id. 211; Parks v. The Mayor of Boston, 8 Pick. 218; Wood v. Peak, 8 Johns. 69; The People v. Mayor of Brooklyn, 9 Barb. 555; Betts v. City of Williamsburgh, 15 id. 255; Le Roy et al. v. Mayor of New York, 20 Johns. 429; The People v. The City of Rochester, 21 Barb. 656; Starr v. Trustees of Rochester, 6 Wend. 655. II. In certiorari proceedings the determination of the questions involved is to be made upon the return; facts cannot be brought to the attention of the court outside of the return or which do not appear therein. That is, there cannot be an issue formed upon the return to be supported by evidence not found in it. Smith v. Board of Supervisors, 30 Iowa, 531; Everett v. The Cedar Rapids & M. R. Co., 28 id. 417. III. Upon the question of the sufficiency of the petition, whether it contained the names of one-third of the resident tax payers, I do not think the adjudication of the trustees is final. If it should appear from the return to the writ that such fact was not shown to the trustees, or, perhaps, that it was shown by insufficient evidence, in either ease the action of the trustees would be set aside, although they had determined that [16] the petition was sufficient. Their decision upon the question of their own jurisdiction may be reviewed by this court. IV. The trustees may decide this jurisdictional question of the sufficiency of the petition upon their own knowledge. If from their personal knowledge of the people and property of their township, or if from records which do contain evidence upon this question they personally know that the petition does contain the necessary number of signers who are resident tax payers of the township, they are authorized to order an election, as provided for by the statute. While in' this matter they act judicially, they are not limited to the consideration of sworn testimony of witnesses or other formal evidence. They may decide upon their own knowledge. This is often done by courts and officers discharging judicial duties; it is nothing unusual. Smith v. Board of Supervisors, supra. The return shows that the trustees did have personal knowledge that the petition had the necessary number of signers who were resident tax payers, and that upon such knowledge, as well as other evidence of the fact, they based their determination. The return does not contradict the conclusion thus reached hy the trustees; there is nothing that will authorize us to disregard it. V. The return shows that the notices of the election required by law were given. The fact that they were posted by the clerk instead of the trustees does not affect their sufficiency. The trustees in this matter acted through the clerk as their agent. The fact that the notice was not published for the time required by the order of the trustees in all the newspapers named therein will not defeat the election. The law requires publication in one newspaper. The trustees ordered publication in more than one, but it is alleged by plaintiff that in one or more it was not published for the time required. But the law was complied with, and a failure to do more than the law requires is not an illegality that will defeat the action of the trustees. VI. The tax, by the terms of the submission of the question to the vote of the tax payers, was to be paid to the railroad [17] company upon the completion of a part of the road. This, it is claimed, is not aid, bnt a bonus for the building of the road. ~We are unable to make any such distinction Whether the tax be used in payment for work upon the road as it is performed, or for the payment of debts contracted after the road is completed; whether the tax be used as a basis of credit, or on the faith of it the company make expenditures, it must, in each case, be considered as aid toward building the road. The object of the law is, that the amount voted as a tax be paid, and expended for the purpose of securing the building of the road. This is certainly done, and so far as the interest of the tax payer is concerned, is best done by payment after the road or a part of it is completed. YII. The return of the trustees contradicts the allegations of the petition in regard to illegal voting at the election. It does not appear that any illegal votes were given; it is not shown whether the persons alleged to have voted without being properly registered, and without showing sufficient excuse therefor, cast their ballots for or against the tax. The allegations in the petition in regard to the manner of conducting the election amount to charges of fraud, which, if established in a proper proceeding, would set aside the vote. But we do not understand that this may be done by certiorari. It is not a remedy intended or calculated to discover and defeat frauds in elections. However that may be, there is no sufficient evidence before us to authorize the conclusion that the election was fraudulently conducted. YIII. Other objections, as that one of the clerks of the election was not sworn, that the trustees did not have before them evidence that the notices had been posted when they ordered tbe election, etc., etc., need not be further noticed than to observe that the record fails to support them, and they are mere irregularities that would not, if established, defeat an election. The return fails to state any fact from which it may be found by us that the election was not legally conducted. IX. Inasmuch as the law under which the election was held is, in my opinion, unconstitutional, I think the whole proceed [18] ings ought to be declared void and the vote authorizing the tax a nullity. My views upon this question I fully expressed in Stewart v. The Supervisors of Polk Co., 30 Iowa, 9. I still entertain them. Upon this ground I would affirm the judgment of the district court. Were this constitutional question out of the way, I find nothing in the record which in my judgment defeats the tax. While differing with my brothers upon the constitutional.question, I have no hesitation in expressing my assent to the conclusions upon the other points of the case above announced, in which the other members of the court concur. The majority of the court, following the decision in Stewart v. The Supervisors, hold the law in question to be constitutional. It follows from these views that the judgment of the district court must be Reversed.