Slingerland v. Norton, 9018.
| Decision Date | 07 December 1894 |
| Docket Number | No. 9018.,9018. |
| Citation | 59 Minn. 351 |
| Parties | TEUNIS SLINGERLAND <I>vs.</I> GEORGE A. NORTON, County Auditor. |
| Court | Minnesota Supreme Court |
On May 16, 1894, there was delivered to the defendant, George A. Norton, county auditor of Dodge County a petition signed by 1,614 legal voters of that county addressed to the board of county commissioners praying that the county seat of that county be changed in the manner provided by Laws 1889, ch. 174 from Mantorville to Dodge Center, nine miles distant. The whole number of votes cast in that county at the proceeding general election was 2,482 as shown by the poll lists. Additional votes to the number of 184 were cast for school officers by women. On the same day Frank L. Willson presented to the auditor powers of attorney from 194 of the signers of the petition authorizing and directing him to strike their names from the petition. He asked to be allowed to take the petition and to strike off those names. The auditor declined and referred him to the board of county commissioners and stated to him that he was about to make an order for a special meeting of the board to consider the petition and all matters pertaining thereto. The plaintiff, Teunis Slingerland, a resident and taxpayer of the county thereupon commenced this action and on May 21, 1894, obtained from the court commissioner of that county the allowance of a temporary injunction, restraining the defendant from making any order convening the county commissioners to consider the petition. Plaintiff claimed that these 194 names should be considered as stricken off leaving but 1,420 petitioners, whereas 1,490 were required. Defendant answered and moved the court June 9, 1894, to vacate the injunction. The court granted the motion and plaintiff appeals.
Davis, Kellogg & Severance and Robert Taylor, for appellant.
Wheelock & Sperry, and S. T. Littleton, for respondent.
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The questions raised by this appeal involve the construction of several of the provisions of Laws 1889, ch. 174, relating to the removal of county seats.
A petition for the removal of the county seat of Dodge county from Mantorville to Dodge Center, in the form prescribed by statute, was presented to the county auditor; and immediately thereafter, and before the petition was filed, one hundred and ninety four (194) of the signers presented to the auditor, in writing, duly-authenticated withdrawals of their signatures, and requests to him to strike their several names from the petition. This the auditor refused to do, and was about to make an order for a special meeting of the board of county commissioners to act upon the petition. Thereupon, the plaintiff, an elector and taxpayer, brought this action to enjoin the auditor from making the order or taking any further steps in the matter, on the ground that after the withdrawal of the one hundred and ninety four names the petition did not contain the required number of signatures. A temporary injunction was issued, which the court subsequently dissolved. From this order, plaintiff appeals.
1. It is urged by the defendant that the plaintiff has an adequate remedy at law, and therefore an injunction will not lie. The point is not well taken. Assuming that plaintiff has a remedy as respects the matter complained of, injunction is the only one. The matter could not be reviewed either on certiorari or by contesting the election. Sinclair v. Commissioners of Winona Co., 23 Minn. 404; Currie v. Paulson, 43 Minn. 411, (45 N. W. 854.)
2. The next question is, how shall the whole number voting at the last general election, as shown by the returns of such election, be ascertained? Clearly, it must be from the poll lists, as distinguished from the official count, which only shows the number of votes cast for a particular office, for the poll lists alone show the whole number voting at an election. In the election law, the word "returns," no doubt, often refers particularly to the official count, but the poll lists are a part of the returns required to be transmitted by the judges of election to the county auditor.
3. We are also of opinion that women voting at the election should not be included in the computation. They are voters only for the purpose of electing school officers, and hence are electors only in a limited or qualified sense. They have no right to vote on the question of the removal of a county seat. As suggested by the learned trial court, if they are to be included in the computation a case might arise where the petition would not have the requisite number of signatures, although signed by every elector entitled to vote on the question of removal.
4. We are also of opinion that the word "majority," in the second clause of section 1 of the act, must be read in connection with the provision in the first clause that the petition must be signed by "not less than sixty per cent. of the whole number voting," etc. It must be construed as meaning, not a mere majority, but the majority required by the first clause, to wit, sixty per cent. This is not an accurate use of language, but it is clearly what the legislature meant.
5. It follows from these conclusions, and the undisputed facts in this case, that, if the names of the one hundred and ninety four who assumed to withdraw their signatures from the petition should be omitted from the...
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