USA > Iowa > Marshall County > The History of Marshall County, Iowa, containing a history of the county, its cities, towns, &c., a biographical directory of citizens, war record of its volunteers in the late rebellion, general and local statistics, portraits of early settlers and prominent men etc > Part 45
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The respondents further admit the alleged proceeding of the District and Supreme Courts, and the issuance of a peremptory writ; but aver that on the 6th of January, A. D. 1859, the said Judge, calling two Justices of the Peace, proceeded to canvass the said returns, in obedience to the writ, and that the Canvassers did not reject any returns, but they did adjudge that there were no returns from the townships of Marion, Le Grand and Green Castle, and did declare the result in favor of Marietta. They deny the allegation in relation to an illegal service of the writ on the Judge, and aver that there was legal serv- ice on the 6th of January, by his written admission thereof. They deny the aver- ments concerning a second service, and deny that, on the 11th January, 1859, he called the two JJustices to his assistance, and with them canvassed the returns of the said April election upon the county seat question ; and they deny that in consequence of the said pretended canvass, the town of Marshall is the county scat. but aver that Marietta is the county seat, both in law and in fact.
And the respondents aver that the pretended canvass of the 11th January was without authority of law, and void : for, at the time of making the same, the said Judge was not at the county seat of the county, but at the house of one Babcock. six miles distant therefrom. and was under duress by the petition- ers in this bill, and other persons ; that the plaintiffs, confederating with others, caused him to be arrested on a pretended criminal charge, and having acquired possession of his person, dismissed the said charge, and then by means of
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threats of personal violence and against the life of defendant, compelled him to make a pretended canvass, which is the same mentioned as of the 11th of January, A. D. 1859; that he, the County Judge, did not call to his assistance the two Justices, but they were among those concerned in his imprisonment and duress, and what they did was done without being called thereto by him, the Judge aforesaid.
The respondents further admit that the Judge made a contract with Dishon. and issued the bonds as alleged ; but deny that he did the same unlawfully or improperly in manner, as alleged ; and they say that the said bonds were issued long before the commencement of this suit ; and they deny that the money will be needlessly or unlawfully expended, and that it will lead to oppressive taxa- tion ; they deny collusion and fraud, and that the facts are as averred in the bill ; but admit notice of them, as stated in the answer; and they deny that the contract was made or the bonds issued for the purpose of preventing the re- moval of the county seat.
The answer is sworn to by Dishon, and is not signed or sworn to by Smith, the County Judge.
Upon the filing of the answer, the defendants again moved that the injunc- tion be dissolved, but the motion was overruled. The defendants appeal, and assign as error the overruling the demurrer and the motion to dissolve the in- HENDERSON & CLARKE, for the Appellant.
junction.
COLE & JEWETT, for the Appellees.
OPINION BY JUDGE WOODWARD.
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. Ob- jection 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 r. Smith, County Judge of Marshall County, Ib. 186, we held that complainants who are, 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 in- formation 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 $26,000 and more, in building a Court House, and in the place where it shall be built, as citizens and property holders in one of these towns.
Besides this, there is no officer upon whom it devolves to enforce the perform- ance 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.
F
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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 his 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 injunc- tion. For this we need not determine, at present, which of the two canvassers 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 ques- tion, 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 $30,000 in the erec- tion of a public building which must be the county seat ; and especially when it appears to the court, that when its mandate shall be obeyed, Marshall will be 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 de- murrer, 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 the opinion that he would have a right to sue upon it under Section 1693 of the Code, and therefore this objection would 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 mandamus itself, still the facts shown in this case warrant the injunction.
The general and particular denial of the allegations of the bill in the an- swer, 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 $30,000 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 the 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 further to be borne in mind that Smith does not answer, whilst the more material facts relate to him or his office, and lie more particu- larly within his knowledge.
In a cause relating to this controversy, which was before this court at the December terin, 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 pro- cecding, which might be a mandamus or a quo warranto or an injunction. And now this case is probably brought to try that ultimate question, whether the re- turns 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,
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for various reasons given, and several reasons are assigned why the tmers men- ยท tioned are not sufficient and legal. Whatever else may be alleged and may ap- pear, 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 peremp- tory writ, to declare the supposed returns from the three townships to be no re- turns. On this point we refer to the case of The State ex rel. Rice vs. 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 scat. The County Judge acknowledged a legal service on the 6th of 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 him instead of the original writ. The sec- ond service, of the 11th January, was superfluous ; and another reason why this should not be regarded as conclusive is, that the Judge does not recognize it. He admits service on the 6th 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 11th 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 ex- pressly 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 ques- tion, 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 relat- ing 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 accord- ance with this opinion.
The contract entered into by Dishon was never fulfilled. The county obtained a perpetual injunction restraining the erection of a Court House at Marietta under its provisions. No suit was ever brought against Dishon's bondsm'en.
Mr. Dishon died of consumption some time later, and there the matter rested.
It is stated that Mr. Dishon proposed to Judge Battin to erect a Court House on the original contract at Marshall, and thus relieve himself of the burden of the bonds which he had indorsed. The offer was refused, although made in a tempting manner to the Judge. The anxiety produced by this self-imposed load is thought by some to have hastened Mr. Dishon's death.
The issue of the legality of the removal of the county seat came up in the Supreme Court at the December Term, 1859. This was the last appeal made to that tribunal.
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From the X Iowa Reports we made the following extract, being the state- ment of case and opinion :
DISHON v. SMITH, County Judge.
Appeal from Marshall District Court rendered Thursday, December 22, 1859:
This was a petition for an injunction to restrain the County Judge of Mar- shall County in reference to certain proceedings subsequent to a vote upon a proposition to remove the county seat.
The petition refers to the election held in April, 1858, upon the question before named, and avers that the election was unauthorized, and was void upon other grounds. After stating some grounds for the charge that the election was void, which are set out in the opinion of the Court, the complainant charges that the citizens of the town of Marshall, to which it was proposed to remove the county seat from Marietta, procured votes to be cast in favor of Marshall by bribery, and by purchase and sale, and that the number of votes thus pro- cured to be cast was more than sufficient to change the result.
The first specification under the charge of bribery, is that the citizens of the town of Marshall subscribed, agreed and bound themselves to pay the citizens of Marion Township, in said county, the sum of $500, to be applied in building bridges across the Iowa River, between the town of Marshall and the township of Marion aforesaid; which was upon the express condition that the citizens of Marion Township would vote for the relocation of the county seat at Marshall. And the petition charges that twenty-five votes were obtained in said Marion Township for the location of the county seat at Mar- shall by reason of such agreement and obligation, which would otherwise have been cast for Marietta.
The second specification is the following : That the citizens of the town of Marshall, with the intent, improperly and illegally, to induce the citizens of the county to vote for the relocation of the county seat at Marshall, did make a conveyance of certain real estate and appurtenances in the town of Marshall, to the citizens of said county, upon the condition expressed in said conveyance, that the people of said county would vote for the relocation of the county seat at Marshall. And the complainant avers that by reason of said conveyance a large number of votes, to wit, fifty-six votes, were obtained for Marshall which would otherwise have been cast for Marietta.
The third specification is as follows : That one Wells S. Rice, a citizen of Marshall, and a prominent actor in the said question of relocation, with the corrupt intent thereby to improperly and fraudulently procure votes for Marshall, gave his promissory note to the Marshall County High School Company for the sum of $3. 000, which note was indorsed by G. M. Woodbury and others, citizens of the town of Marshall, and was so signed and indorsed upon the con- dition and corrupt agreements, that in consideration thereof the citizens of Iowa Township would vote for Marshall as the county seat. And it is charged that, by reason of the bribe, votes to the number of seventy were procured to be cast for Marshall by the voters of said Iowa Township, which, but for said bribe, would have been cast for Marietta. And it is further alleged that one Sylvanus Rice, also a citizen of Marshall, gave his note to the same parties for $1.000 with the same corrupt intent, agreement and result.
By an amendment to the petition, the complainants represent that after the election, the Canvassers canvassed the returns and declared that Marietta had received a majority of the votes, and thereupon one Wells S. Rice sued out from the District Court a writ of mandamus, requiring the County Judge to
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HISTORY OF MARSHALL COUNTY.
recanvass the said votes, and to count certain votes which were before rejected by the Canvassers on account of certain informalities in the returns thereof, or show cause why he should not do so; and that such proceedings were had therein, that the District Court awarded a peremptory writ commanding the same, from which order the said County Judge appealed to the Supreme Court. and such proceedings were had thereon ; that at the December term, 1858, the last-named court affirmed the decision of the District Court awarding the per- emptory writ. That such peremptory writ was issued and served on the said defendant, he confessing service thereof by writing, and in obedience to the mandate thereof, he did (with two Justices of the Peace) proceed to recanvass the said returns, and did duly and legally canvass them, and did declare as the result thereof that Marietta had received a majority of the votes, and he made a legal entry thereof and declared Marietta the county seat of said county.
In the original petition, the complainants prayed an injunction restraining said Smith and his successors in office from proceeding further in the canvass of said votes than simply to examine the returns and make abstracts, stating the number of votes cast for each of the said towns, and such other acts as by law they are required to perform; that he be specifically enjoined from declaring Marshall to be the county seat, and he and all others under his authority from removing the records, documents or offices of the county thereto until the fur- ther order of the Court. And they pray that the Court adjudge the said pre- tended election to be null and void; that the returns from the townships of Le Grand, Marion and Green Castle may be declared insufficient and void ; and for such other orders and relief, etc.
An injunction was allowed in vacation, and at the April term, A. D. 1859, the respondents filed a motion to dissolve it, which was granted, and the com- plainants appeal. For the purposes of the hearing of this Court, the motion is to be regarded as a demurrer. All other points which are essential are notices in the opinion of the Court.
E. W. Eastman, M. M. Crocker and C. C. Cole, for the appellants : H. C. Henderson and W. Penn Clark, for the appellee.
OPINION BY JUSTICE WOODWARD.
In the outset, we are met by that cause assigned which objects that the injunction commands the County Judge not to do that which by writ of man- damus he is commanded to do. At the first sight, this appears plausible ; but on a close view it is ascertained not to be sound. The two commands do not conflict. The mandamus only orders the doing of a certain act, and does not follow into its consequences. The injunction seeks to stay those consequences. The mandamus directs the County Judge to canvass the votes, counting in cer- tain returns, and to ascertain the result, but it does not order him to remove the public offices ; whilst the injunction directs him not to remove these. We need not determine how far. to what aet, the true mandate of the writ would go. It would not, in the first instance, command him to carry out to the full extent the consequence of the election, that is, to remove the county seat ; but at whatever point the mandamus would cease to direct, at that point the injunc- tion would commence its inhibition.
This reasoning is of necessity. Hitherto, the two points held have been that the Canvassers could not judge of the sufficiency of the returns, and that they must count them. In this positson of things, Marshall appears to be the county seat. Now, suppose the returns from three townships to be insufficient, and this changes the result. Then there must be some point at which the
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HISTORY OF MARSHALL COUNTY.
injunction may apply itself to prevent that result the true vote does not call for, that is, a removal to Marshall. The sufficiency of the returns from the three townships has not yet been tried. As this sufficiency is contested, until this trial takes place, it is not known whether the legal returns show Marshall or Marietta to be the county seat. This is the object of the present suit, and the injunction is to stay the proceedings just where the mandamus leaves it, until the above question is tried. Such is the true intent of the man- damus and the injunction, to whatever intent their particular language may go. But they do not conflict in the present case. It will be observed that the prayer is that the County Judge be restrained from proceeding further in the canvass than simply to examine the returns and make abstracts, stating the number cast for each town, and such other acts as they may by law be required to perform. If the writ should go so far as to direct the Judge to declare the result, still the removal is the chief object, and this is restrained.
Neither does the injunction restrain the County Judge from the performance of a legal duty. If the returns are invalid, as alleged, and thus the result is changed, it is not his duty to remove ; and it is in order that that question may be tried that the injunction was allowed.
The question next in importance is whether the matters alleged in relation to the election and to the returns from the three townships sustain the charge of insufficiency and invalidity.
First, it is objected that the act under which this vote was taken, entitled " An act in relation to County Seats" (Acts of 1855, chap. 46, p. 71), was not approved by the Governor. The printed copy in the volume of acts is wanted in the evidence of an approval ; but the original, in the office of the Secretary, bears the approval, as of the date of January 22, 1855. The copy or certificate of this in the printed acts is but evidence of the fact, and is not essential in order that the act may take effect. Such certificate is convenient as evidence of the approval and of the date, but it is not necessary.
It is next objected that the records of the County Court do not show that notice of the presentation of the petition for holding the election was given. and it is urged that this is essential to the jurisdiction of that Court. And it is further averred that there was no such notice, in fact. It is an error to regard this as a jurisdictional matter. This idea pertains to cases where the Court acts judicially, and in matters between party and party, and not to one of the nature of the present one, which is a vote of the people. Nor does the want of such notice invalidate the election. In matters of such a public nature, the ob- servance of each particular is not held a prerequisite to validity. And it is a gen- eral rule of law that statutes directing the mode of proceeding of public officers, re- lating to time and manner, are directory. (The People vs. Cook, 14 Barb., 261- 290; Marchant vs. Langworthy, 6 Hill, 646; The People rs. Peck. 11 Wend, 604. )
But this proposition is not applicable when the statute uses negative words, restricting the action, or when there is something plainly showing a different intent. But there is a peculiar fitness in the rule when applied to popular elections, in which case we may consider the character of the duties. and of the men necessarily chosen to perform them. These are men usually not instructed in their duties, or in nice forms and distinctions. Many of their duties, too, are to be performed in haste and amid confusion, and without oppor- tunity for deliberation. It is true that the last thought does not apply in force to the specific act now in question ; but it reaches to some of the objections hereinafter made ; and besides, whilst it applies to such duties generally, spe- cific instances are not to be singled out as exceptions.
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The same tenor of reasoning applies to the objection that the records do not show that notices of election were posted in the townships, and the averment that such notice was not, in fact, posted in the township of Marietta. And it has been remarked, further, that the people are not to be disenfranchised, to be deprived of their vote, by the omission of some duty by an officer, if an election has in fact, been held at the proper time; and that such a penalty ought not to be visited upon them for the negligence or willfulness of one charged with similar duties.
Upon considerations like these, the Courts have held that the voice of the people is not to be rejected for a defect, or even a want of notice, if they have, in truth, been called upon and have spoken. In the present case, whether there were notices or not, there was an election, and the people of the county voted ; and it is not alleged that any portion of them failed in knowledge of the pendency of the question, or to exercise their franchise.
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