Herrick v. Carpenter , 54 Iowa 349 ( 1880 )

Rothrock, J.

i. county aif'iioard1o7" supervisors: certiorari. This is a branch of the same controversy involved in Herrick v. Carpenter et al., page 340, ante. It was held in that case that the court below correctly determined that the order submitting the . n _ - . n question oi the relocation oi the county seat was improperly made, and that the cause was properly remanded to the board of supervisors, with orders to re-canvass the petitions and remonstrances. After the decision in that case was made in the court below, the defendants refused to make a re-canvass.

At the next general election, and after the order submiting the question to a vote had been set aside, more than fourteen hundred ballots were cast for the proposed relocation, and but four against it. The defendants as the county board of canvassers canvassed the vote, and declared Columbus Junction and its additions to be the county seat. The main cause having been affirmed, of course it follows that the election and the order removing the county seat were void. It is contended in behalf of appellants that certiorari is not the proper remedy, because the acts of the defendants in canvassing the votes and in making the order of removal were purely ministerial, and not judicial. The mere counting of the votes was a ministerial act, but the making of the order of removal was as plainly a judicial act as the making of the order for .the election. The latter order had been set aside by the court, and the defendants in ordering the removal again determined, as a question of law, not only that the court had erroneously set aside the order of the board, but that such order was valid, and that they had not acted illegally in the matter of receiving and considering affidavits, and submitting the question to the voters of the county. We think the judgment of the Circuit Court should be

Aeeibmed.