State ex rel. Streissguth v. Geib

• Citation: 66 Minn. 266,68 N.W. 1081
• Parties: STATE EX REL. STREISSGUTH v GEIB ET AL.
• Decision Date: 20 November 1896
• Court: Supreme Court of Minnesota (US)

66 Minn. 266

68 N.W. 1081

STATE EX REL. STREISSGUTHvGEIB ET AL.

Supreme Court of Minnesota.

Nov. 20, 1896.

(Syllabus by the Court.)

1. Electors who have signed a petition for the removal of a county seat have the absolute right to demand of the board of county commissioners, at any time before it has completed its action on the petition, that their names be withdrawn therefrom. But such demand cannot be made of the county auditor. It can only be made at a session of the board called to consider the petition. Slingerland v. Norton, 61 N. W. 322, 59 Minn. 351, followed.

2. Where a withdrawal by an elector of his name from such petition was presented by his attorney in fact to such board, and, before any action thereon was had, a recall of the withdrawal, and a revocation of the authority of the attorney, were presented to the board, it had no authority to remove such name from the petition.

3. Where a board of county commissioners illegally strikes from such petition the names of electors, so that the number remaining is reduced below the minimum required for a valid petition, mandamus will lie to compel a restoration of the names to the petition.

Appeal from district court, Sibley county; M. J. Severance, Judge.

Action by the state, on the relation of Theodore Streissguth, for mandamus to John Geib and others, county commissioners of Sibley county, and H. A. Seigneuret, county auditor. From a judgment issuing a peremptory writ, defendants appeal. Affirmed.

Ed. H. Huebner, Lydon A. Smith, and Thos. Hessian, for appellants.

McClelland & Tefft, P. A. Cosgrove, and John Lind, for respondent.

START, C. J.

This is an appeal by the defendants from the judgment of the district court of the county of Sibley adjudging that a peremptory writ of mandamus issue, directing the defendants, as the board of county commissioners of such county, to reconvene and annul their previous action in directing the striking from a petition, for the removal of the county seat from the city of Henderson to the village of Arlington, the names of 144 petitioners, and restore such names to the petition, and take action thereon as provided by statute. On the trial of this case, it was stipulated that the allegations of fact in the alternative writ as amended were true, and the judgment of the court was based on such facts, which, so far as here material, are these: On the 31st day of December, 1895, the petition for the removal of the county seat was filed in the office of the county auditor. Thereafter 144 of the electors who had signed the petition severally executed an instrument, which was both a power of attorney and a withdrawal, in which the signer declared that he thereby withdrew his name from the petition, and authorized his attorney in fact, named and appointed therein, to strike his name from the petition, and instructed him to do so, and to demand from the person or officer having the petition the opportunity to strike his name therefrom. We shall, for the sake of brevity, hereinafter refer to such instruments as the “withdrawals.” After the execution of the withdrawals, and delivery thereof to the persons named therein as the attorneys in fact of the signers, and before the board of county commissioners had convened to act on the petition, each of the withdrawals was exhibited by such attorney in fact to the county auditor, in whose official possession the petition then was, and demand made upon him for the right and opportunity to strike the name of the person executing the withdrawal from the petition, which was refused. After such presentation of the withdrawals to the auditor, but before any of the names of the signers thereof had been in fact stricken from the petition, and before any action had thereon by the board of county commissioners, each of the 144 persons executing the withdrawals executed and delivered to the relator and other proponents of the petition an instrument, duly witnessed and acknowledged (which will be hereinafter referred to as a “revocation”), wherein he declared that he revoked and recalled his withdrawal, and demanded that his name remain on the petition, and that he be...