State ex rel. Childs v. Bd. of Com'rs of Crow Wing Cnty.

• Citation: 66 Minn. 519,73 N.W. 631
• Parties: STATE EX REL. CHILDS, ATTY. GEN., v BOARD OF COM'RS OF CROW WING COUNTY ET AL.
• Decision Date: 06 January 1898
• Court: Supreme Court of Minnesota (US)

66 Minn. 519

73 N.W. 631

STATE EX REL. CHILDS, ATTY. GEN.,vBOARD OF COM'RS OF CROW WING COUNTY ET AL.

Supreme Court of Minnesota.

Jan. 6, 1898.

(Syllabus by the Court.)

1. Held, that it appears that there was no competent evidence before the commission (under Laws 1895, c. 298) to sustain their finding that the petition presented to them was signed by 55 per cent. of the actual residents and legal voters of the territory proposed to be taken from Cass county, and attached to Crow Wing county, “as shown by the returns of the last preceding general election.”

2. Also, that it appeared from the evidence before this court that the actual facts did not sustain such finding.

3. It was not necessary that one who had signed such petition, but wished to withdraw his name, should appear in person before the commission. It was sufficient if, before the commission had acted on the petition, he communicated to them in writing, so authenticated as to show its genuineness, the fact that he was not in favor of the proposed change, and wished his name withdrawn and not counted in favor of the change.

4. A communication to the effect that he did not understand the nature of the petition when he signed it, that he was opposed to the change, and “hereby asks for an opportunity to strike his name from said petition,” is a sufficient withdrawal.

Quo warranto proceedings by the state, on the relation of H. W. Childs, attorney general, against the board of commissioners of Crow Wing county and others. Writ of ouster ordered.

H. W. Childs, Atty. Gen., and M. R. Tyler, for relator.

C. E. Chiperfield, Wilson & Van Derlip, Gilfillan, Willard & Willard, H. A. Fleming, and McClenahan & Mantor, for respondents.

MITCHELL, J.

This proceeding has already been twice before this court. 68 N. W. 767, and 69 N. W. 925. It is now before us on the evidence taken and reported by the referee. The settled law of the case is that the finding of the commission is not conclusive on the courts; that while every presumption is in favor of such finding, which must stand until the relator proves that there were neither facts nor evidence to support it, yet, if it sufficiently appears that the finding was wholly unsupported either by the actual existing facts or by proper evidence thereof, the relator should have judgment; that false ex parte affidavits as to the number of voters residing in the territory in question, or as to any other fact, are not competent and sufficient evidence to sustain such finding, and neither is the false report of some private citizen, sent by the commission to ascertain the facts; that the relator must show, not only that there was no competent evidence before the commission to sustain the finding, but also that the actual facts did not sustain it. 69 N. W. 925. It was also held in the first opinion filed (68 N. W. 767) that the number of votescastin the territory in question at the last general election must be made to appear to the commission.

One of the requirements of the statute (Laws 1895, c. 298) is that there shall be presented to the secretary of state a petition signed by not less than 55 per cent. of the actual residents and legal voters of the territory proposed to be attached to said organized county, as shown by the returns of the last preceding general election from all the voting precincts within said territory. As all the returns to the county auditor of the last preceding election had been destroyed, secondary evidence was resorted to. The difficulty in proof was further increased by the fact that some of the “voting precincts” were partly within and partly without the territory proposed to be taken from Cass county, and attached to Crow Wing county.

The evidence returned goes to three questions, viz.: First, the total number of legal voters residing in the disputed territory; second, the total number registered therein; and, third, the total number of votes actually cast therein at the general election of 1894. Counsel disagree as to...