Stone v. Miller

Day, J. I. The petition prays that a writ of certiorari may be granted, commanding the board of supervisors to certify fully to the Cii’cuit Court a transcript of the record and proceedings of said board, as well as the facts relating to the matter stated in the petition, and the proceedings and evidence upon which said order for said vote was made. The judge, upon the presentation of the petition, ordered that a writ of eertiorari be granted as prayed. And the writ itself commands the board to certify and return a full, complete and perfect transcript of all the matters called for by the petition and the order of the judge. In return to this writ, the board caused to be certified to the Circuit Court the petitions' and remonstrances submitted, and a complete trans — 245 — cript of all the proceedings had before them during the pendency of, and pertaining to, the matter in question. This transcript shows that, when the board acted upon the matter and ordered the vote, they found the following facts to exist respecting the petitions and remonstrances: The whole number of votes under the last preceding census...............................3,662 The number of names appearing on the petition. .2,684 The number of names on both petition and remonstrance, to be counted off of petition.......... 500 Duplicates on petition....................... 14 Number taken from petition by affidavit affecting both petition and remonsti’ance.............. 15 Number of names taken from petition..........• 8 Number of aliens counted off petition.......... 4 Number counted off by affidavit of remonstrance. 7 Total number counted off from petition......... 548 Total number to be counted on petition.........2,136 Number of names on remonstrance............2,250 Number of duplicates counted off.............. 44 Number of minors counted off............ 13 Number of names counted off by affidavit of petitioners.................................. Ill Total number counted off..................... 168 Total number counted on remonstrance.........2,082 Majority for petitioners... .•.................. 54 After the writ was served upon the board they convened and ordered that, amongst other things, the following be certified as a part of their return: “ We further certify the fact to be that in striking off the 500 names from the petition, as shown by the copy of record hereto attached, we acted, first, on comparison of signatures, viz: while acting as a committee as aforesaid, we compared names and signatures on both petition and remonstrance, and when we were satisfied that the signatures were alike, by thus comparing, we made a list of such names, and they numbered 351, which we agreed — 246 — should be stricken off from petition and remonstrance (we were furnished by remonstrators with a list of names which it was claimed by them were signatures of same persons on both petition and remonstrances). We next took the balance of names on such list, and which names were similar in initials, and the signatures'of which we were not satisfied by comparison were made by the same person, and resorted to extrinsic evidence, such as poll-books, to see if other men by same name had ever voted in that township; the military list in assessor’s books; the alien records, to see if two men by the same name had been naturalized; and the comparison of signatures by others not members of the board, and inquiries of parties outside, and not being fully satisfied ourselves that the same persons both petitioned and remonstrated, but by the aid of this outside and extrinsic evidence, resolved the doubt in favor of the remonstrance; and we further say that by this method we struck off from petition, as being on the remonstrance, in all 500 names; and we further say that without this extrinsic evidence, we would not and could not have stricken off from petition, as being on the remonstrance, but 351 names; and we further say that a re-canvas of said names, excluding all extrinsic evidence, but acting on the petition and affidavits annexed, and the remonstrance and affidavits-annexed, and the comparison of signatures, we, in order to be satisfied that the same person both petitioned and remonstrated, will be compelled to find that the number of legal voters petitioning for a re-location of county seat, exceeds the number of legal voters remonstrating against a removal by 113 names, and would, therefore, be compelled to order a call as we did; we further say that duplicates were stricken off by a comparison of signatures, and the minors by extrinsic evidence. The result of l’e-canvass will be as follows: Whole number on petition. ................2,684 Duplicates counted off by comparison of signatures. 14 Names counted oif as being on remonstrance from a comparison of signatures.................. 351 Total counted off from petition................ 365 — 247 — Total nnmber to be counted on petition.........2,319 Whole number names on the remonstrance......2,250 Duplicates counted off by a comparison of signatures ................................... 44 Total on remonstrance.......................2,206 Number on petition exceeding that on remonstrance 113 The above tabulation is without the use of our personal knowledge, by the use of which, viz: personal knowledge of names to both petition and remonstrance, that they were not voters when petition and remonstrance were presented to us, the change will be as follows: Number to be stricken from petition........... 380 To be stricken from remonstrance.............. 80 Number on petition after all deductions.........2,304 Number on remonstrance.....................2,170 Petition exceeds remonstrance............ 134 We further say that without the use of our personal knowledge, or any extrinsic evidence or comparison of signatures, the petition will exceed the remonstrance by 434.” i. cebtioresponsive1™ stricken ont. The plaintiff* moved the court to strike from the return everything except a transcript of the proceedings of the board up to the time that the order for the submission to a vote was made. The court overruled this motion, and this action is assigned as error. At the time of the submissison of the question to the board of supervisors, both parties seemed to have thought that it was competent to assail the competency of the signers of the petition and remonstrance by affidavits: Hence, affidavits were submitted upon both sides, and the board, acting upon them, counted off 22 names from the petition and 111 from the remonstrance. That this action was erroneous under the doctrine of Herrick v. Carpenter, 54 Iowa, 340, is now conceded; still the order of the board calling an election ought not to be set aside if the number of names legally on the petition in fact exceeded those on the remonstrance. The real»question is, did the board act illegally in calling an election? If the number of petitioners was sufficient to justify the — 248 — order of the board calling an election, their order must be sustained, notwithstanding the fact that they may have erred in the manner of ascertaining the number properly on the petition and remonstrance. The petition for the writ of certiorari prays that the board may be commanded to certify fully the facts relating to the matters stated in the petition, and the proceedings and evidence upon which .an order for a vote was made. The matter in question simply shows upon what evidence the board proceeded, and in what manner they reached the result upon which the order was based. In our opinion, the court did not err in refusing to strike this matter from the return. couNi-Y tfmi ofTpetí davittol affl" II. The petition consisted of 185 distinct petitions, to each which was attached the affidavit of the person who procured the signatures. The affidavit to petition number one, is as follows: “ I, L. S. Sherwin, being duly sworn, on oath say, that I obtained the signatures to the foregoing petition, that said signatures are all genuine, and that the signers thereto were all legal voters of Delaware county, Iowa, at the time of signing. L. S. Si-ierwin. “ Subscribed in my presence, and sworn to before me, this 7th day of June, 1880. [seal] . A. S. Blair, Notary Public. 1. It is objected that this affidavit does not comply with the requirements of section 282 of the Code, because it states that the signers were all legal voters of Delaware county, at the time of signing. It is insisted that the affidavit should state that the signers are, at the time of making the affidavit, legal voters. We think, however, that it is a compliance with the statute to show by affidavit that the signers were legal voters at the time of signing. 2. It is further objected that the certificate to the affidavit does not name the person signing or swearing. Section 2913 of the Revision, respecting the verification of pleadings, required that the officer “shall certify that it was signed — 249 — in his presence by the person (naming him), and by him, before such officer, sworn to or affirmed.” This provision, however, applied only to the verification of pleadings, and it was not incorporated into the Code of 1873. We know of no statute or rule of law which requires that this- certificate should be held insufficient. 3. It is further objécted that the notary signing the certificates simply attached his name with the addition, “Notary Public,” without stating the State or county for which he was notary. Appellant relies upon Tunis v. Withrow, 10 Iowa, 305, and Willard v. Cramer, 36 Id., 22. In Tunis v. Withrow, one of the affidavits in question was not evidenced by the seal of the notary, and the other had neither the seal nor the signature. These facts clearly distinguish that case from the one at bar. In Willard v. Cramer, the paper in question was a certificate of acknowledgment. The decision was based upon the express provision of the Revision, sections 2201, 2227, requiring the certificate of acknowledgment to set forth the title of the court or person before whom the acknowledgment was taken. There is no similar provision as to the certificate to an affidavit. The affidavits are all headed “ State of Iowa, Delaware county,” and the signatures of the notaries are authenticated with a seal. The objection under consideration to the jurats in question, is, we think, without merit. ___, amending — : jurats. III. The jurat to the affidavit to one of the petitions was signed “J. H. Puller,” another was signed “Ohas. E. Bronson,” and two were without signature. These four Peti^ons were filed on the 7th day of June^ and contained in all 67 names. On the 17th of June, when the board came to act upon the matter, they gave permission to amend the jurats by writing after the name “ J. H. Puller,” the words “ Just. Peace,” and after the name “ Ohas. E. Bronson” the words “Notary Public,” and after the other two jurats the words “A. S. Blair, Notary Public.” The appellant assigns this action of the court as error. Leave to — 250 — make these amendments was asked upon the ground that the omission was a mistake and clerical error. It is not claimed but that the affidavits were properly sworn to before the persons referred to. It was clearly competent, we think, for the board to allow the jurats to be perfected. After leave was granted to petitioners to correct the petitions in the manner above indicated, the remonstrants asked and obtained permission to amend in like manner the jurats to three of their affidavits. certforarfduty of court. IY. The board of supervisors certified to the court the originals óf the petitions and remonstrances, together with statement that, without the aid of extrinsic evidence, they were able to find only 351 names on ^ie petition and remonstrance. The appellant insists that there are 623 names upon the petition which are also upon the remonstrance. If 623 names be stricken from the petition, the remainder would not equal the number of names on the remonstrance, and would not authorize the board of supervisors to order a vote. Whether the board were, or were not, authorized to submit the question to vote, is the question which was submitted for determination to the court below by this proceeding. The bill of exceptions recited that “the court, although requestéd so to do by plaintiffs, did not examine, or cause to be examined, the petition or remonstrances, to ascertain how many names of persons who signed the remonstrances were also upon said petition, and thereby determine whether the said petition had the majority.” The court seems to have relied simply upon the statement of the defendants made to their return, and to have ignored altogether the evidence sent up with their return, whereby the truth or falsity of their statement might have been determined. It was the duty of the court to examine the evidence submitted, and determine whether it showed that the signatures properly on the petition were a majority of all the names submitted. In refusing to make this examination the court erred. The case of Baker v. Board of Supervisors, 40 — 251 — Iowa, 226, relied upon by appellees, is not in point. That was an application for an injunction to restrain further proceedings in the matter of submission. Reversed.