Champion v. Board of County Com'rs of Minnehaha County
Decision Date | 13 February 1889 |
Citation | 41 N.W. 739,5 Dakota 416 |
Parties | Champion v. Board of County Commissioners. |
Court | North Dakota Supreme Court |
Appeal from district court, Minnehaha county.
Burton H. Champion obtained a writ of certiorari against the board of county commissioners of Minnehaha county, to test the validity of their action in calling an election under the local option law. From an order dismissing the writ plaintiff appeals.
C. H Winsor, for appellant. A. A. Polk and H. H. Keith, for respondents.
This is a special proceeding by certiorari, wherein the plaintiff obtained from the district court of Minnehaha county a writ against the board of county commissioners of that county, and the county clerk thereof, to certify up the records and proceedings of said board, wherein it decided to call an election under the "local option law" of 1887. The affidavit of the plaintiff upon which the writ issued is very full, and is set out verbatim in the record. The writ recites the allegations of fact relied upon as evidenced by the affidavit, and is as follows: "Whereas, it has appeared to us by the affidavit of B. B. Champion that lately, before you, or a majority of you composing at the time the board of commissioners of the county of Minnehaha, such proceedings have been had that you, or a majority, have irregularly, and without authority or jurisdiction in the premises, and without a petition having been presented to you, signed by at least one-third of the legal voters of the said county of Minnehaha, as shown by the last preceding general election praying that the question of prohibition of the sale of intoxicating liquors be submitted to a vote of said county, and that you did order an election to be held on the 8th day of November, 1887, on said question; and whereas, B. B. Champion is shown by said affidavit to be a person beneficially interested in the result of said election, he being a person engaged in the retail liquor business in the city of Sioux Falls, in said county, and having property which will be greatly deteriorated in value if said election, so called by you, was regular and proper, and he, the said Champion, having deposited his money for a license to sell intoxicating liquors for the six months ending July 1st, in the year 1888 and having requested such license, and tendered a proper bond to the city council of the city of Sioux Falls, which license has been refused because the result of said election in the minds of the city council of Sioux Falls is doubtful, and for that reason alone, and having been restrained by an injunction from this court from selling intoxicating liquors; and whereas, it is alleged by said B. B. Champion that your proceedings therein have been irregular, without authority, and in violation of section 1 of chapter 70 of the Laws of Dakota passed at the seventeenth session of the legislature of said territory; and that, being willing that your proceedings in the premises and appertaining thereto should be certified and returned by you into our district court on the 14th day of January, 1888, at the court-house in the city of Sioux Falls, do command you," etc. To this writ the commissioners made return, alleging, in substance, that a petition was presented to the board, a copy of which is made a part of their return, containing more than one-third of the legal voters of Minnehaha county, upon which an order was made calling an election as prayed for, and making a copy of the resolution and order of the board a part of their return. The board further returned that the list of the legal voters, as shown by the last preceding general election, upon which their action was based, was not in the custody of the board; whereupon the county clerk, N. E. Phillips, was made a party to the proceeding by leave of the court, and returned such list of voters as prayed for. The defendants thereupon, appearing specially, moved to dismiss the proceedings, and to quash the writ, upon the grounds which will be noticed hereafter; and the court thereupon, after reciting the issuance of the writ, the return thereof, the motion of defendants, and argument of counsel, etc., ordered, "that a writ ofcertiorari heretofore granted in this matter in the application of B. B. Champion be, and the same is, set aside, dismissed, and vacated." From this order vacating the writ the plaintiff appeals, assigning as error that the court erred in dismissing the writ without a hearing upon its merits.
Sixteen reasons were assigned by the defendants why the writ should be dismissed. The prayer of the motion was granted. The order granting the motion does not specify upon which ground or grounds it was granted. From the recitation contained in, and from the words of, the order it was based upon some ground contained in the motion. It is therefore sufficient, if any ground upon which the motion was based will sustain the order. If it will not, the order must be reversed. It is not enough that a good ground could have been alleged upon which the order could have been sustained. Appellate courts hear causes and determine them upon the record made in the court below whenever jurisdiction of the person and subject-matter are shown to exist; and the question here is, ought the court to have entertained the writ as against the reasons urged by the defendants to quash it? This can only be determined by examination of the reasons alleged seriatim:
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...as an original action in the circuit court.’ " 2017 S.D. 50, ¶ 21, 900 N.W.2d at 849 (quoting Champion v. Bd. of Cty. Comm'rs of Minnehaha Cty. , 5 Dakota 416, 430, 41 N.W. 739, 742 (1889) ). Troy Township then identified that "[p]erhaps as good a criterion as any for determining what is ju......
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Oyen v. Lawrence Cnty. Comm'n, 28085
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