Gile v. Stegner
| Decision Date | 24 June 1904 |
| Docket Number | Nos. 13,894 - (165).,s. 13,894 - (165). |
| Citation | 92 Minn. 429 |
| Parties | WILLIAM GILE v. JOHN A. STEGNER and Others.<SMALL><SUP>1</SUP></SMALL> |
| Court | Minnesota Supreme Court |
John T. P. Power, A. H. Mohler, R. F. Schulz, V. B. Seward and A. E. Clark, for appellants.
Somerville & Olsen, for respondent.
This action was brought to perpetually enjoin the defendants from taking any official action upon a petition on file with the county auditor praying for the removal of the county seat of the county of Lincoln from the village of Lake Benton to the village of Ivanhoe. A temporary injunction was issued so enjoining the defendants, and they appealed from an order denying their motion to dissolve it.
There is practically no dispute as to the facts relevant to such motion. They are substantially these: A petition for such removal, signed by more than sixty per cent. of the legal voters of the county, was duly filed in the office of the county auditor September 9, 1901. Such proceedings were had that the board of county commissioners met and considered the petition September 28, 1901, and such proceedings were had and taken by the board that the county auditor, in form, called a special election to be held on October 28, 1901, for the purpose of enabling the electors of the county to vote on the question of so changing the county seat. Such election was, in form, held on the day named, and more than the required number of votes were cast and canvassed for the removal of the county seat to the village of Ivanhoe. The validity of the election was contested, and in due course of procedure the cause reached this court on appeal from the judgment of the district court of the county of Lincoln adjudging that the election was legal, and the county seat changed accordingly. The judgment was reversed by this court, and the election held void, for the reason that the board had no jurisdiction to consider or act upon the petition, in that no sufficient proof of posting of notice of the special meeting of the board to act upon the petition was made and filed with the auditor prior to such meeting. Tucker v. Board of Commrs. of Lincoln Co., 90 Minn. 406, 97 N. W. 103. The cause was remanded to the district court, with directions to amend its findings of fact and conclusions of law so as to provide for the entry of judgment to the effect that such election was void. Judgment was so entered in the district court December 10, 1903.
Four days after, a demand signed by five of the petitioners for the removal was served on the county auditor, requiring him to make, file, and serve notice of calling a meeting of the board of county commissioners to consider the petition for removal. The county auditor complied with such demand, and the board met on January 2, 1904, to consider the petition. While the board were so in session this action was commenced by a taxpayer and legal voter of the county, and the temporary injunction issued. The defendants answered, and the plaintiff replied. The defendants then made a motion to dissolve the injunction. The appeal in this case is from an order denying the motion.
1. The defendants' first contention is that the complaint does not allege facts entitling the plaintiff to equitable relief by injunction, for the reason that if the board of county commissioners and county auditor, without authority of law, take measures to call a special election, and one is held, there is an adequate remedy at law, by contesting the election. Clearly the suggested remedy is inadequate. If the county officers are proceeding to call and hold a moot election on the question of changing the county seat, private and public interests and morals require that the officers be enjoined from proceeding. A contest of the election after it has been held, and result declared, affords no remedy, except to secure a judicial decision that the election was void. The injury to taxpayers and to public interests by such an election cannot be remedied by an election contest. An injunction is a proper and adequate remedy in such a case. Streissguth v. Geib, 67 Minn. 360, 69 N. W. 1097.
2. Chapter 111, p. 115, Laws 1899, provides, in effect, that, where a special election for the change of the county seat of a county has been held, no steps shall be taken to secure the resubmission of the question "until after the expiration of a period of five years from the date of such special election." It is the claim of plaintiff's counsel that this limitation applies to an invalid election as well as to a valid one, because the evils to be guarded against by the limitation are as great in the one case as in the other, and that for this reason, if for no other, the motion to dissolve the injunction was properly denied. The language of the statute, however, is that
Where a special election has been held under this act for the change of the county seat, * * * no such petition shall be circulated, signed, presented or filed until after the expiration of a period of five years from the date of such special election.
It is quite obvious that this limitation has sole reference to elections held "under this act"; that is, to elections as to which the jurisdictional provisions of the act have been so far complied with that the election is not a nullity. If it had been the intention of the legislature to include within the purview of the limitation attempted elections which were absolute nullities, it is to be presumed that it would have said so. We are not at liberty to construe the statute as if it read "where an election has been held or attempted to be held, under this act." We therefore hold that the five-years limitation has no application to an election on the question of the change of a county seat, which is, by reason of noncompliance with the jurisdictional provisions of the law, a nullity. McKinney v. County, 26 Fla. 267, 4 South. 855. It follows that the fact that five years have not expired since the attempted election in this case affords no reason why steps may not now be taken to have the question of the removal of the county seat submitted at a special election.
3. This brings us to the important question presented by the record in this case, namely, can the petition for such removal filed September 9, 1901, be now made the basis for calling and holding a special election on the question of the removal of the county seat? The plaintiff insists that the question must be answered in the negative, for the reason that the petition is stale, having already served its...
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