Jamison v. Board of Supervisors , 47 Iowa 388 ( 1877 )

Dat, Cn. J.

i. county seat: removal of-, líame on reinoimtranco. I. From the answer of the defendants it appears that they counted as petitioners for the relocation of the county seat the names of those who signed , , . , the remonstrance and aiterwards signed a re-petition praying for a relocation. In this way the board found that a majority of all the legal voters of the county had petitioned for a relocation. In Loomis v. Bailey, 45 Iowa, 400, we held that if a name appeal's on both petition and remonstrance it must be counted as a remonstrant only; and that the board cannot inquire into the circumstances under which signers affixed theirjiames, or whether they have changed their minds. Under the doctrines of that case, with which we are still fully satisfied, the action of the board complained of in tins proceeding was clearly erroneous.

_._. statute1^ limitations, II. The principal question is whether this proceeding can be maintained under section 3221 of the Code, which provides that no writ of certiorari shall be granted after twelve months have elapsed from the time the inferior court, tribunal, board or officer has, as alleged, exceeded his proper jurisdiction or otherwise acted illegally. It is claimed that the board, on the 16th day of June, 1873, made a final and conclusive determination that the petition for relocation was signed by the requisite number of voters, and that the order submitting the question was a mere ministerial act and not illegal so long as the prior determination remained unreversed. Whilst this position is not lacking in plausibility, avó do not believe it to be sound. The canvass and entering of the result upon the minute book of itself could not affect any one injuriously. If no order for an election had been made, no one would ever have sustained any injury by the illegal finding that a majority of the legal voters had petitioned for a relocation. The submission to vote alone caused injury. The submission involved an adoption and reaffirmance of the former conclusion that enough voters had signed the petition to authorize the submission. .In ordering the submission the board must have determined that the proceeding was of such a character as to render the submission proper. This determination being erroneous may be reviewed on certiorari. The case has its parallel in, and may be illustrated by, appeals from the District and Circuit Courts, which must be taken Avithin six months from the rendition of the judgment or order appealed from; and yet, upon such appeal rulings upon motions for change of Avenue, demurrers and the like may be reviewed, though made more than six months prior to the taking of the appeal, if the appeal be taken within six months from final judgment. We think the judgment of the court below is correct.

Affirmed.