State ex rel. Byrne v. Wilcox

• Citation: 91 N.W. 955,11 N.D. 329
• Decision Date: 21 October 1902
• Docket Number: 6731
• Court: North Dakota Supreme Court

91 N.W. 955

11 N.D. 329

STATE ex rel P. E. BYRNE v. PETER WILCOX, et al

No. 6731

Supreme Court of North Dakota

October 21, 1902

Application by the state on relation of P. E. Byrne for an injunction against Peter Wilcox and others. Writ denied.

Leave to file information denied, and the proceeding dismissed.

Newton & Smith, for the application.

Cochrane & Corliss, Boucher, Philbrick & Cochrane, and E. S. Allen for defendants.

OPINION

WALLIN, C. J.

In this proceeding, on the petition of P. E. Byrne, a chambers order was issued by one of the judges of this court, directing the defendants to show cause before this court at Bismarck. on the 7th day of October, 1902, why the relief sought by the petitioner should not be granted. The order having been served, the matter came on to be heard before the court assembled at Bismarck. At the hearing Messrs. Newton & Smith appeared for the petitioner in support of the petition and Messrs. Cochrane & Corliss appeared in behalf of the defendants. At the hearing before the court, counsel for defendants, appearing specially, filed a motion to quash the proceeding. The grounds of the motion which we deem to be most important are stated as follows: "(2) The consent of the attorney general has been refused, and the case is one where the court should decline to take jurisdiction unless the attorney general initiates the proceedings. (3) The case is not one in which the supreme court can take original jurisdiction." "(6) No sufficient reason is shown why the application is not made to the district court."

In passing upon this motion it becomes necessary to make particular reference to the petition, which contains a statement of the facts upon which the petitioner relies as a foundation for relief, and also a statement of the particular relief which is sought. Only the substance of the petition will be given, except where quotations are deemed necessary to a proper understanding of the case. It states in effect that the relator is a citizen of Burleigh county, in this state, and is an elector of the Fourth ward of the city of Bismarck, which city is situated within Burleigh county, and is, and since September 20, 1900, has been, incorporated as a city under the general laws of the state governing cities embraced in chapter 28 of the Political Code; and that petitioner is the nominee of the Independent and Democratic party of said Burleigh county for the office of county auditor of said county, to be voted for at the general election to be held on the first Tuesday of November, 1902. The petition further alleges, after giving a description of the territory embraced within the city, that the city contains four wards, and that it has been divided into four wards for a period of more than 10 years, and each of said wards is described in the petition by its metes and bounds. The petition gives the total of the votes cast in each of said wards at the city election held therein in 1901 and in 1902, showing that less than 200 votes were cast in each of said wards at said elections, respectively. It further appears that each of said wards has two regularly elected and qualified aldermen. The petition further states that at all elections hitherto held for state and county purposes within said city the city has been divided into three election precincts by the county commissioners, and each of said precincts is particularly described by metes and bounds with reference to township and ward lines. The particular acts complained of are set forth as follows: "That on or about the 2d day of September, 1902, the board of county commissioners, then convened as such board, among other things by them done, adopted and spread upon its records the following resolution: 'Whereas, it appears that, owing to the increase in the number of votes in certain precincts of the county, and that certain changes should be made in precincts heretofore made, and that new ones should be established: Therefore, be it resolved, that precinct No. 1 be established as follows: All that portion of the city of Bismarck lying west of the center line of Fourth street and south of the township line running between township 138 and 139. That precinct No. 2 be established as follows: All that portion of the city of Bismarck lying between the center line of Fourth street and the center line of Seventh street and south of the township line running between township 138 and 139. That precinct No. 31 be established as follows: All that portion of the city of Bismarck lying east of the center line of Seventh street and south of the township line running between township 138 and 139. That precinct No. 30 be established as follows: To consist of township 141, range 79. That precinct No. 32 shall be established as follows: Shall consist of township 141, range 78. That, except with the change of precincts No. 1, 2, and 30, and the establishing of the precincts of the same number as above set forth, and the establishing of precincts No. 31 and 32, there is no change made in the voting precincts hereinbefore established.' That at said time the said board of county commissioners undertook and then and there named and appointed certain persons as inspectors of elections for the said various precincts so undertaken to be established for the city of Bismarck by it, as follows: For said precinct No. 1, Peter Wilcox; for said precinct No. 2, Frank Donnelly; for said precinct No. 31, Richard H. Penwarden; and for said precinct No. 12, or High School precinct, C. A. Burton. That the said persons so attempted to be appointed as inspectors of elections for the said several precincts, as hereinbefore shown, so attempted to be established in said city of Bismarck by said board of county commissioners, intend to act as such inspectors, and in such pretended precincts, so attempted to be established, at the general election next to be held in the state of North Dakota and in said Burleigh county and said city of Bismarck on the first Tuesday of November, 1902." The petition likewise avers, in substance, that, besides two members of congress, there are to be elected at said election the several state officers and the county officers of said county of Burleigh. It is further alleged, in effect, that each of the four wards of the city is a legally established ward, and that, as such, each ward constitutes an election district, and that in said city each ward constitutes an election precinct under the statute, for the reason that none of said wards contain as many as 300 electors. The petition further alleges, in substance, that the county commissioners of Burleigh county are wholly devoid of lawful authority, and were, when the resolution above set out was attempted to be adopted by said board, without lawful authority to establish or to alter any election precincts within said city of Bismarck, and were equally without authority to appoint the persons above named as inspectors of any election precincts within said city; and the said persons named and attempted to be appointed by said resolution of the board were and are wholly without lawful authority to act as inspectors in the said election precincts so attempted to be established. Upon this showing of facts by the petition the relator asks, in substance, for the following relief in this court: First. An adjudication by this court declaring said resolution of the board of county commissioners to be "illegal and void." Second. That an injunction be issued enjoining the several persons named in said resolution as election inspectors from acting or attempting to act as such election inspectors within the city in any of the election precincts attempted to be established or created by the terms of said resolution of the commissioners. Third. For an order restraining and enjoining the defendant W. S. Moorhouse, as county auditor of Burleigh county, from recognizing either or any of the election precincts attempted to be established by said resolution of the commissioners, and restraining and enjoining the said Moorhouse from preparing any ballots to be used by the electors of the city of Bismarck with any reference to said election precincts so attempted to be created, enlarged, or diminished by said resolution of the commissioners. The record discloses the additional fact that the petitioner, before presenting his said petition to a member of this court as a basis for an order to show cause, exhibited the petition to the Honorable O. D. Comstock, attorney general of this state, and requested that official to join in the proceeding and co-operate with the petitioner in his application to this court for said injunctional relief. The attorney general expressly refused to comply with the request of the petitioner, and, as manifesting his official attitude with respect to this proceeding, the attorney general caused to be indorsed upon said petition a certain statement, to which he affixed his official signature, which statement is as follows: "Upon due consideration of the matters and facts set forth in the within petition of P. E. Byrne, I hereby disapprove the same, and refuse to join in the motion that it be filed, and the writ therein asked for issued."

We think this statement of the facts will suffice as a basis for a consideration of the preliminary motion to quash the proceeding, and to the merits of this motion we will now give attention. The second ground of the motion is as follows "The consent of the attorney general has been refused, and the case is one where the court should decline to take jurisdiction unless the attorney general initiates the proceeding." This ground of the motion, by its terms, simply asserts that the case is one in which the court should decline to take jurisdiction. Nevertheless, the motion...