State Et Rel. Burrows v. Truax
| Decision Date | 08 February 1918 |
| Docket Number | 20722.,Nos. 20693,s. 20693 |
| Citation | 166 N.W. 339,139 Minn. 313 |
| Court | Minnesota Supreme Court |
| Parties | STATE et rel. BURROWS v. TRUAX, County Auditor, et al. (two cases). |
OPINION TEXT STARTS HERE
Appeal from District Court, Wilkin County; Stephen A. Flaherty, Judge.
Mandamus by the State, on relation of George W. Burrows, against P. E. Truax, County Auditor, and others; and subsequent writ of certiorari by the State, on relation of George. W. Burrows, against F. E. Truax, County Auditor and others. Peremptory mandamus granted, and the Auditor appeals; and writ of certiorari quashed, and relator appeals. Judgments in both proceedings affirmed.
Syllabus by the Court
The board of county commissioners may, in county ditch proceedings, hear parties and witnesses who appear before them without administering an oath.
The statute (Gen. St. 1913, § 5531) which authorizes them to hear and consider the testimony of parties, viewers, and engineers, and other admissible testimony, is not a mandate to the board to hear no person except under oath. In Case No. 20693:
E. H. Elwin, Lewis E. Jones, and D. J. Jones, all of Breckenridge, for appellant.
W. E. Purcell and Wolfe & Schneller, all of Wahpeton, N. D., and George D. Smith, of Breckenridge, for respondent.
In Case No. 20722:
W. E. Purcell and Wolfe & Schneller, all of Wahpeton, N. D., and George D. Smith, of Breckenridge (Engerud, Divit, Holt & Frame, of Fargo, N. D., of counsel), for appellant.
D. J. Jones, Lewis E. Jones, and E. H. Elwin, all of Breckenridge, for respondents.
These proceedings, one in mandamus and one in certiorari, by same relator, arise out of a county drainage ditch case. The relator, appellant in the certiorari case and respondent in the mandamus case, was an objector. At the meeting of the board of county commissioners to consider the matter of the establishment of the ditch, relator and others appeared by attorney and asked that all witnesses be sworn. The board declined and the witnesses were not sworn. After the conclusion of the hearing, the board made an order establishing the ditch. Relator then discovered that the county auditor had made no entry in his record of the request that the witnesses be sworn or of the fact that they were not sworn, and the mandamus proceeding was instituted to compel him to record such facts. The court after hearing granted a peremptory writ commanding the auditor to so amend his records. The auditor immediately appealed. Thereafter relator procured a writ of certiorari to review the proceedings and the determination of the board. The court on the return day quashed the writ and in that case relator appealed.
Counsel on both sides have spent much time in argument of questions of practice, all pertaining generally to the question whether relator succeeded or was entitled to succeed in getting the merits of the case before the court. We shall devote no time to these questions. We have little difficulty in holding that the parties to this litigation were entitled to a determination of their lawsuits on the merits rather than upon refined questions of practice.
1. There is but one question that goes to the merits of the case. Relator seeks to have the order establishing the ditch vacated, on the ground that the county board refused to swear the witnesses produced before it. If this was fatal to the validity of the order establishing the ditch, relator should have relief. If it was not, then relator must fail. We think it was not fatal.
The functions of the county board in a ditch proceeding are primarily legislative and only quasi judicial. The county board is not a court. Its proceedings are not proceedings in court. They are necessarily informal. The members are usually not lawyers. They are not governed by legal rules of evidence. The witnesses are usually for the most part officials, such as...
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