Miller v. Norton

• Decision Date: 31 October 1911
• Citation: 22 N.D. 196,132 N.W. 1080
• Parties: MILLER et al. v. NORTON et al.
• Court: North Dakota Supreme Court

22 N.D. 196

132 N.W. 1080

MILLER et al.

v.NORTON et al.

Supreme Court of North Dakota.

July 20, 1911.

On Rehearing, Oct. 31, 1911.

Syllabus by the Court.

Held, following State v. Langlie, 5 N. D. 595, 67 N. W. 958, 32 L. R. A. 723, involving county seat removal from Caledonia to Hillsboro, in Trail county, that the decision of the board of county commissioners on the sufficiency of the petition for removal is final, in the absence of a showing of fraud sufficient to vitiate such petition, and that in this case the board did not lose jurisdiction to make a valid order submitting the county seat removal question to an election.

No sufficient reason for deferring action by said board in ordering an election on said petition was made to appear, and its immediate action on such petition was not an abuse of discretion under the facts in this case.

Our county seat removal statute construed, and held:

(a) That it s a departure from relocation statutes in force in this state prior to 1895.

(b) That the ballot requirements are mandatory, and the entire enactment, when construed therewith, necessitates its construction as a removal statute.

(c) That the procedure on county seat removal contemplates a petition asking removal from the established to a proposed county seat, designated in such petition, to be followed by an election in which the question submitted is in accord with the petition on a ballot containing only the old and proposed new locations as the places from which the voter must select.

(d) That such a construction does not render our statute unconstitutional.

Removal as distinguished from relocation statutes as to county seat legislation, and the various county seat statutes in force in Dakota Territory and since statehood, are discussed so far as they relate to our present statute on this subject.

Petition for writ of prohibition denied, and application dismissed, and the county seat removal election accordingly declared valid.

Appeal from District Court, Pembina County; Pollock, Special Judge.

Petition by M. H. Miller and others for writ of prohibition to Adam Norton and others. From an order denying the petition and dismissing the application, and petitioners appeal. Affirmed.H. B. Spiller, E. W. Conmy, and Ball, Watson, Young & Lawrence, for appellants. Geo. A. Bangs, Geo. Robbins, D. J. Laxdal, and Wm. McMurchie, for respondents.

GOSS, J.

This is an appeal from an order of the district court of Pembina county denying the petition of the appellants, residents, electors, and taxpayers of the city of Pembina, for a writ of prohibition, and dismissing such application.

At the general election of 1910, there was submitted to the voters of Pembina county the question of county seat removal ordered July 13, 1910, on a petition for removal from Pembina city to the city of Cavalier. Further facts are recited in the opinion in connection with the points raised. To avoid repetition, they are omitted in this introductory statement.

[1] Appellants urge that the county commissioners acted without and in excess of their jurisdiction when they ordered an election without according to the petitioners and other electors of Pembina county an opportunity to examine the petition, time to investigate its sufficiency, and, if they should desire the same, further opportunity for hearing as to the validity of the petition for removal. Counsel for appellant appeared before the board of county commissioners for Pembina county in behalf of Pembina city, and hearing was granted him, whereupon an adjournment was taken until the middle of the afternoon, at which time said counsel again appeared, and asked permission to file written objections against final action being taken upon the petition without a reasonable time allowed appellants herein to investigate its sufficiency. The board thereupon proceeded to examine into the sufficiency and legality of the petition, and continued so doing for the remainder of the afternoon and during an evening session. Just prior to adjourning for evening, said counsel appeared before the board, and filed his written objections to action being taken upon the petition. These objections consisted in a written statement, unverified, made by counsel on behalf of petitioners and appellants in this case, reciting on information and belief that the petition presented was invalid and insufficient under law and fact to serve as a basis for ordering an election, “in that the petition did not conform to the statute; that large numbers of names on said petition were not signed personally by the alleged electors; that a large number were not verified by the electors; that a large number of persons signing said petition were not qualified electors,” further, that all the objections, except as to the conclusion of law from the form of the petition, were made entirely upon information and belief. The written objections recited that the persons objecting had no knowledge of the contents of the petition prior to its filing at 2 o'clock that day with the county auditor, and “have no knowledge of its contents from an actual examination,” and that said petition was a bulky document purporting to contain 1,800 or 1,900 names, to “investigate regarding which would necessarily require two or three weeks time in order that the parties objecting be able to inform themselves upon the questions essential to the validity of the petition,” concluding with the request that the board defer action to a time fixed; that a hearing be then had on the sufficiency and legality of the petition, at which hearing the persons objecting might bring before the board competent evidence touching the questions affecting the validity of the petition.

The board refused to defer proceedings as requested on the petition, but, instead, having spent the afternoon and evening in such an examination, immediately passed its resolution reciting the filing of the petition and its contents and its verification by each of the signers thereof, stating each signer to be a resident of the county of Pembina, and qualified elector therein, and that each signer personally signed his name to the petition knowing the contents and purposes thereof, finding the same to be facts, and that the petition was so signed and properly verified by qualified electors of said county equal in number to at least two-thirds of all the votes cast in said county at the election held November 3, 1908, being the last preceding general election. The board by appropriate and specific resolution thereupon ordered that the prayer of the petition be fully and completely granted, and that the question of the removal of the county seat of the county of Pembina from the city of Pembina, the place where it is now located by law, to the city of Cavalier in said county, be submitted to the electors of said county of Pembina at an election to be held November 8, 1910, at the same time and place as, and in connection with, and as a part of the general election to be held on said day in said county.

The defendants and respondents herein are the county commissioners and county auditor of Pembina county, and on return to the writ in the district court they made answer and return, reciting the foregoing matters and the findings and order of the board of county commissioners of said county. They made further return that the county commissioners who passed upon the sufficiency of said petition had all of them been residents for more than 10 years, and two of them for 20 and 25 years, respectively, of said county; that they were intimately and thoroughly acquainted with the electors of the county, and their joint knowledge thereof was such that some member of the board was able to vouch from personal knowledge as to the signature of many of the petitioners, and the qualifications of many, if not all,the petitioners; that a public examination was had proceeding without interruption from 3:30 o'clock in the afternoon of July 13, 1910, to between the hours of 10 and 11 of said evening, except a short intermission had; that in such examination the names of the signers were read aloud by some member of the board, and the genuineness of each signature determined and the qualifications of the elector so signing passed upon by the board; that there were present many persons, among them some of the notaries public who had taken the affidavits of the signers verifying the petition, and such notaries, together with other persons present, when requested, furnished information touching the identification of the signatures and bearing on the qualifications of the petitioners; that full hearing was had and opportunity afforded to any one who might so desire to inspect the petition and object to any name or signature and to give his reason therefor; that the board acted “in everything done in the utmost good faith and with the honest intent and purpose of complying and fulfilling the intent of the law”; that the board thereupon became satisfied of the legality of the petition, the genuineness of the signatures and the qualification of the signers, and without any desire to act arbitrarily or unreasonably in said matter, but with the intent to avoid the provoking of any feeling or controversy so far as possible to avoid, and, believing that the matter should be promptly disposed of and that nothing could be gained by delay, made its finding as to the legality of the petition, the genuineness of the signatures and the qualification of such signers, and its order that the matter be submitted to the electors of the county for determination at the general election in November following.

The return further shows that at the election had November 8, 1910, 2,269 votes were cast in favor of the removal of the county seat to the city of Cavalier, and 815 votes cast against the same, such votes being cast by duly qualified electors of said county at said election, a total of 3,084 votes cast, there being 213...