Rice v. Smith , 9 Iowa 570 ( 1859 )

Woodward, J.

It will not be necessary to consider whether the court should have dissolved the injunction upon the motion based upon the bill alone, for, if the demurrer should have been sustained, or the second motion to dissolve, based on the bill and answer, this will be sufficient.

We do not think the court erred in refusing to sustain the demurrer. Objection is made to the competency of the complainants to present this bill. In The State ex rel. Byers v. Bailey, 7 Iowa 396, and The State ex rel. Rice v. Smith, County Judge of Marshall county, lb. 186, we held that complainants who arc, and are averred to be, citizens, voters and property holders, and tax payers, had such an interest and held such relations that they might file an information for a writ of mandamus to the county judge to enforce a public duty in which they and other citizens had an interest; and the same reason holds good for their being permitted to pray an injunction to prevent the doing some act detrimental to their interest and those of other citizens of the county. No reason is perceived why they should not be permitted to sustain such a bill either for themselves, or for them and all others in like manner interested. These petitioners represent themselves as citizens, voters, property holders and tax payers in the county, and in one of the towns affected by these proceedings, so that, as citizens of the county they are interested in the question of expending twenty-six thousand dollars and more in building a court house ; and in the place where it shall be built, as citizens and property holders in one of those towns.

Besides this, there is no officer upon whom it devolves to enforce the performance of a duty upon the county judge, or to restrain him if he is about to do an act at the same time illegal and detrimental to the rights and interests of the public and of individuals. If he ■ should undertake to build a court house at a place which is not the county seat, there is no officer whose duty it is to cause him to be restrained, whilst the right to do it would seem to belong to many.

The petition is addressed to the Hon. J. P., Judge of the Eleventh Judicial District of the State, and was filed in the office of the Clerk of the District Court in Marshall county. This is sufficient in form as a bill in equity in that court.

The authority of the county judge to provide the public buildings, is not questioned in the bill, but has authority to place a court house in a town which is alleged not to be the county seat. This is the gist of the bill.

We think the complainants show enough to sustain their bill for an injunction. Eor this we need not determine, at present, which of the’ two canvasses of the returns of the April election, is authoritative.

It is sufficient that the bill shows that the location of the county seat is in controversy, and the proceedings in reference to it, and the state of the question, are set forth so far as to show that it is manifestly improper for the judge, in the present position of the matter, to expend more than thirty thousand dollars in the erection of a public building which must be at the county seat; and especially when it appears to the court, that when its mandate shall be obeyed, Marshall will be declared the county seat.

The grounds for the motion to dissolve the injunction, both on the bill alone and after filing the answer, are in part the same as are assigned as causes of demurrer, but in part they are different; one of these is the alleged insufficiency of the injunction bond, in that it is given to the county alone. This would, with more propriety, have run to both the county and Dishon; but we are of opinion that he would have a right to sue upon it under section 1698 of the Code, and therefore this objection could not sustain the motion. It is true that the county judge has discretionary authority as to the erection of public buildings, but this discretion may be restrained if it is abused, as if the judge is about to erect a court house at a place which is not the county seat.

And though the fraud may not be sufficiently charged, or a disobedience to the peremptory writ may be remedied under the manda-mus itself, still the facts shown in this case warrant the injunction.

The general and particular denial of the allegations of the bill, in the answer, would, upon ordinary grounds, call for the dissolution of the injunction, were it not that the fact remains, after all the denial, that the county judge is about to expend over thirty thousand dollars upon a public building located at Marietta, whilst a controversy is pending as to the county seat, whether it shall be, or has been, removed to Marshall. This is the burden of the case, and as the granting or the continuance of an injunction is ultimately in the discretion of the court, the important fact referred to must prevent the application of some of the ordinary rules of law ; and it is farther to be borne in mind, that Smith does not answer, whilst the more material facts relato to him or his office, and lie more particularly within his knowledge.

In a cause relating to this controversy, which was before this court at the December term, A. D. 1858, this court held that the question of the validity of the returns from the three townships, was not involved, but the only question was whether the canvassers should count them. And it was held that they must count them, that they could not judge of their validity, beyond the question whether they were returns, and that their validity must be tried by another proceeding, which might be a mandamus, a quo warranto, or an injunction. And now this case is probably brought to try that ultimate question, whether the returns from the three townships are such as should be received and counted. In the answer it is alleged that the election was not legally called and conducted, for various reasons given, and several reasons are assigned why the returns mentioned are not sufficient and legal. Whatever else may be alleged and may appear, it appears that the controversy is pending, and the work of building is not done.

It was not in the power of the canvassers, after the issuance of the peremptory writ, to declare the supposed returns from the three townships to be no returns. On this point we refer to the case of the State ex rel. Rice v. W. C. Smith, county judge, upon the mandamus, ante.

The complainants insist that there was a second and legal canvass by which Marshall was declared to be the county seat. The county judge acknowledged a legal service on the 6th January, and acted upon it, and this was sufficient. It would not be in his power, after this, to object the want of a legal service by reason of a copy being served upon. Mm 'instead of tbe original writ. The second service of the 10th. January, was superfluous; and another reason why this should not be regarded as conclusive is, that the judge does not rgcognize it. He admits service on the 6th of January, and avers that he canvassed under it, and insists that the supposed canvass of the 11th was not his. But whatever may be said of the other parts of this proceeding — his answer and averment that the justices acting in this canvass of the _llth were not called by him, will prevent it being taken as conclusive, at least for the present.

We have before remarked that in another cause now before this court, it is held that the canvassers under the peremptory writ could not declare the returns from the three townships to be no returns, and while under that case they must make a canvass, counting those returns, this cause must proceed to the trial of the question pertaining to the sufficiency and validity of those returns. The former cause in this court determined only that the canvassers must count them.

That decision was not upon the ground that they were sufficient, but expressly upon the ground that the canvassers had no authority to decide this. And, as the case was presented, this court could not then determine that question, but it was left for another proceeding, if the parties choose to try it. And such a further proceeding is the present cause, in which every question relating to the sufficiency of those returns, and to the legality of the election, which is stated or involved in the answer, may be tried. Until the conclusion of this cause, which is the one actually determining which place is the county seat, the injunction must continue. The judgment of the District Court is affirmed, and a writ of procedendo will issue, and the cause be conducted to trial in accordance with this opinion.