State ex rel. Childs v. Board of County Commissioners of Crow Wing County
| Decision Date | 06 January 1898 |
| Docket Number | 10,217--(41,[2] 13 [3] ) |
| Citation | 73 N.W. 631,66 Minn. 519 |
| Parties | STATE OF MINNESOTA ex rel. H. W. CHILDS, Attorney General, v. BOARD OF COUNTY COMMISSIONERS OF CROW WING COUNTY and Others |
| Court | Minnesota Supreme Court |
Original Opinion of October 20, 1896, Reported at: 66 Minn. 519.
The result is that a writ of ouster must be issued.
H. W Childs, Attorney General, and M. R. Tyler, for relator.
W. A Fleming and McClenahan & Mantor, for respondents.
The relator having amended the information and writ by inserting new allegations, on February 17, 1897, the court made an order of reference to take testimony. On December 13, 1897, the referee filed his report, and thereafter the cause was submitted upon additional briefs.
The following opinion was filed January 6, 1898:
This proceeding has already been twice before this court. It is now before us on the evidence taken and reported by the referee.
The settled law of the case is that the finding of the commission is not conclusive on the courts; that while every presumption is in favor of such finding, which must stand until the relator proves that there were neither facts nor evidence to support it, yet if it sufficiently appears that the finding was wholly unsupported either by the actual existing facts or by proper evidence thereof the relator should have judgment that false ex parte affidavits as to the number of voters residing in the territory in question or as to any other fact are not competent and sufficient evidence to sustain such finding, nor is the false report of some private citizen sent by the commission to ascertain the facts; that the relator must show not only that there was no competent evidence before the commission to sustain the finding, but also that the actual facts did not sustain it. It was also held in the first opinion filed that the number of votes cast in the territory in question at the last general election must be made to appear to the commission.
One of the requirements of the statute (Laws 1895, c. 298) is that there shall be presented to the secretary of state a petition signed by not less than fifty-five per cent. of the actual residents and legal voters of the territory proposed to be attached to said organized county "as shown by the returns of the" "last preceding general election from all the voting precincts within said territory." As all the returns to the county auditor of the last preceding election had been destroyed, secondary evidence was resorted to. The difficulty in proof was further increased by the fact that some of the "voting precincts" were partly within and partly without the territory proposed to be taken from Cass county and attached to Crow Wing county.
The evidence returned goes to three questions, viz.: first, the total number of legal voters residing in the disputed territory; second, the total number registered therein; and, third, the total number of votes actually cast therein at the general election of 1894.
Counsel disagree as to basis upon which the sufficiency of the petition should have been determined by the commission counsel for the relator contending that it was the registration of voters, while counsel for respondents claim that it was the number of votes actually cast at the last preceding general election. We do not find it necessary to decide which is correct, but shall assume that the contention of the respondents is right. They concede in their brief that the evidence of the relator establishes the fact that ninety-one or ninety-two residents of the disputed territory voted at the general election of 1894. An examination of the evidence satisfies us that this concession is within the actual facts. All of these must be presumed to have been duly qualified voters. To constitute 55 per cent. of 91 there should have been 51 signatures to the petition. The petition contained 67 signatures. We shall...
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