Roos v. State

• Decision Date: 01 January 1861
• Citation: 6 Minn. 291
• Parties: OSCAR ROOS, REGISTER OF DEEDS OF CHISAGO COUNTY, vs. THE STATE OF MINNESOTA, ex rel. ANDREW SWENSON.
• Court: Minnesota Supreme Court

6 Minn. 291

OSCAR ROOS, REGISTER OF DEEDS OF CHISAGO COUNTY, vs. THE STATE OF MINNESOTA, ex rel. ANDREW SWENSON.

Supreme Court of Minnesota.

Appeal from judgment of district court, Chisago County, allowing a peremptory writ of mandamus, requiring Roos, the register of deeds, to remove his office from Taylors Falls to Centre City, in Chisago County.

The alternative writ showed that Taylors Falls had been the county seat; that on the fifth of September, 1860, a petition, signed by more than half of the electors, praying that the electors of the county might be allowed to vote on the removal of the county seat from Taylors Falls to Centre City, at the next general election, was sent to the board of county commissioners of the county, who, thereupon, caused to be inserted in the notices for the ensuing general election, an article requiring the electors of the county to vote on such removal; that such electors did so vote; and that a majority was in favor of the removal; that Roos, the register of deeds, neglects to remove his office to Centre City.

Points and authorities for appellant: —

1. The defendant could not demur to the writ. Minn. Stat., 633, § 11. And as the defendant could not demur to the writ, he might, by his return, submit that he was not bound by law to execute it, which submission being in the nature of a demurrer, should have been treated accordingly; that is, the point should have been argued and decided upon the sufficiency of the writ. Tap. on Mand., 404 [362].

2. The writ of mandamus must clearly show upon its face, that it is the defendant's duty to execute it. Tap. on Mand., 367, [322]; while in this proceeding the writ did not state facts sufficient to show that by law it was the defendant's duty to execute it.

3. The return was sufficient, and the court erred in quashing it; and whether sufficient or not, the writ itself was defective in substance, and did not state facts sufficient to entitle the plaintiff to a peremptory writ, even upon default. When a complaint does not state facts sufficient to constitute a cause of action, a judgment upon default will be reversed by the supreme court. Tap. on Mand., 355, [308] to 481, [382].

Points and authorities for respondents: —

1. The writ is sufficient, and shows clearly upon its face that it was the duty of the defendant to obey it. Comp. Stat., 111-12.

2. The defendant, by his answer to the merits, waived all defects in form, and irregularities in the writ.

3. The defendant, by his answer, admits the existence of the law upon the statutes, and also the regularity and sufficiency of the proceedings had under the law, as the same is alleged in the writ, the effect of which he seeks to avoid by denying the constitutionality of said law, thereby placing himself in the attitude of disobeying the laws and defying the authority of the court, by setting up his individual opinion and construction of the law, which, if permitted to do, would be subversive of all law and of the power and authority of the court.

4. The defendant has, by his answer, placed on record the fact that the law in question is in existence upon the statutes, and is thereby estopped to deny his duty to obey the writ. Gould's Plead., 153, § 168.

W. H. Burt, for appellant.

L. R. Cornman, for respondent.

FLANDRAU, J.

The question presented by this appeal is one of very considerable importance to the state at large, and has enlisted our earnest endeavors to arrive at a correct determination. We have viewed it in all its legitimate bearings, and applied such rules of interpretation to the provision of the constitution involved, as are sanctioned by law and judicial decision, with a desire on our part to sustain the act of the legislature brought into question, if possible, without doing violence to the organic law.

Previous to the adoption of our constitution, the legislative power of the territory was vested in the governor and the legislative assembly; Organic Act, § 4; and no law could be passed by any other authority. In the year 1853, a law was passed by the legislature of the territory, on the subject of the manufacture and traffic in spirituous liquors, the validity of which was left to be determined by a vote of the people. Laws 1853, pp. 7-13, § 19. The people in their primary assemblies adopted or ratified the law by a majority vote, and the courts of the territory subsequently declared it void, as having been in effect passed by the people and not the legislature. I am unable, however, to find any record or report of the decision, and am not certain that the question was passed upon by the court of last resort. The rule is a familiar one, however, and has received the sanction of the courts of other states. Parker v. The Commonwealth, 6 Penn. St., 515-16.

During the territorial existence of Minnesota, a very great evil had grown up in the legislation of the country, consequent upon the feverish excitement that prevailed for the creation of towns and cities, and the speculation in lots and lands. It was the constant practice of the legislature to change county lines, and the county seats of counties from one town to another, at the solicitation of interested parties, without a full understanding of the wishes and interests of the people of the counties affected. Instances even occurred where such removals were carried through the legislature without the knowledge of that body, by inserting clauses in bills, surreptitiously, the title of which indicated entirely another purpose. As long as the power to change county lines and remove county seats resided in the legislature alone, and its authority was unrestricted, it was found that its action on the subject was liable to abuse. When the constitution was framed, this subject received the careful consideration of the convention, and the discussion upon what is now section 1, of article 11, of the constitution, was based almost entirely upon the abuses that had previously existed in the legislation of the territory, and it was the almost universally expressed opinion of the members, that some check should be imposed upon the legislature in regard to making changes in county lines and county seats; and it was decided that the most just and practicable method would be to require the sanction of the citizens of the counties to be affected, to the legislation, before it could become operative. See the debates of the convention presided over by President Sibley, from page 467 to 480; also, those of the convention presided over by President Balcombe, from page 259 to 269. The result of these debates was the following section of the constitution: "Art. 11, § 1. The legislature may, from time to time, establish and organize new counties, but no new county shall contain less than four hundred square miles; nor shall any county be reduced below that amount; and all laws changing county lines in counties already organized, or for removing county seats, shall, before taking effect, be submitted to the electors of the county or counties to be affected thereby, at the next general election after the passage thereof, and be adopted by a majority of such electors. Counties now established may be enlarged, but not reduced below four hundred square miles."

The legislature, at the session of 1858, passed a general law for the removal of county seats. Comp. Stat., 111; by which it is provided that when a number of voters in a county, equal to half the highest number of votes polled at the general election preceding, shall petition the county commissioners for a change of the county seat, the commissioners shall submit the question of change to the electors, &c., and a majority voting in favor of the change shall effect it, &c. This act was designed to remain in force and apply to all future cases. Now, it will be seen, that by the provision of this law, the legislature does not act directly upon the question of the change of any particular county seat at all, but the whole question is left to the people of each county, and the county seat may be removed, and the legislature know nothing about it. Let us see whether the constitution intended to work any such change as the legislature has introduced. In the first place, there was no way, as we have shown, to obtain the voice of the people directly upon any subject of legislation, as long as the legislative power was vested solely in the legislature. That body was not permitted to delegate its trust to the people or any one else. It became necessary, therefore, in order that the people might have a voice directly in any subject properly one of legislative cognizance, that some provision should be made for it in the constitution. All other subjects of legislative jurisdiction are conferred upon that body without qualification. Art. 4, Const. But the people were not willing to allow the legislature absolute control over the question of county lines, in counties that were "already organized," nor over the removal of county seats, as had previously been the case, and as would have yet been so, had nothing been said in the constitution about it; because under our system of government, state constitutions are not creative, but restrictive instruments, and the legislature of a state has as extensive powers as the parliament of Great Britain, subject only to the restrictions imposed upon it by the constitution of the United States, and the particular state in which it acts. Board of Supervisors of Ramsey Co. v. Heenan, 2 Minn., [330-2.] The purpose of the constitution was to impose a restriction upon the legislature, in acting upon a certain class of subjects. It was not to deprive that body of any participation in them whatever, and confer the jurisdiction upon some distinct tribunal. It was more in the nature of granting to the people of the several counties, a veto power upon its acts, than of conferring the power in the first instance upon the people. The words are, "all laws...