State ex rel. Childs v. Board of County Commissioners of Crow Wing County
| Decision Date | 20 October 1896 |
| Docket Number | 10,217--(41,[2] 13 [3] ) |
| Citation | 68 N.W. 767,66 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 |
Rehearing Denied 66 Minn. 519 at 526, 532.
Writ of quo warranto requiring respondents to show by what warrant they exercised jurisdiction, control and authority over certain territory alleged to be a portion of Cass county. The case was heard on the matters set forth in the writ and admitted in the answer, and the questions raised thereon were determined in favor of respondents, and it was ordered that the case stand for further proceedings to be had as to the other allegations in the writ, which were put in issue by the answer, unless the court should be otherwise advised by the parties. Writ of ouster.
H. W Childs, Attorney General, and M. R. Tyler, for relator.
The county of Cass was organized by Laws 1872, c. 79, and has never since by any act of its people lost its organization. We claim it could not be disorganized without a vote of its people. Sp. Laws 1876, c. 208, an act to attach Cass county to Crow Wing county, having enacted no provision for submitting the proposition to the electors of Cass county was unconstitutional, and Cass county is still an organized county, and does not come within the purview of Laws 1895, c 298. State v. McFadden, 23 Minn. 40, held the act of 1876 unconstitutional. This court was then composed of three judges, but Chief Justice Gilfillan dissented from the conclusion of the majority of the court in an opinion which is termed one "of great vigor and logical force" in State v. Honerud, 66 Minn. 32, 68 N.W. 323.
C. E. Chiperfield and Wilson & Van Derlip, for respondents.
Laws 1895, c. 298, is constitutional. Courts will not declare a law unconstitutional, except where a valid construction is impossible. Ames v. Lake Superior & M. R. Co., 21 Minn. 241, 282. Where no constitutional restriction is placed, the legislature has absolute control over counties, their establishment, organization, extent, existence, and government. State v. McFadden, 23 Minn. 40; People v. Whitcomb, 55 Ill. 172. The language of Const. art. 11, § 1, is so plain there is no room for construction by the court. It meant no law respecting a change of county lines should go into effect until, after its passage by the legislature, it should be submitted to the electors of the counties affected and duly adopted by them. The action of the Republican and Democratic constitutional conventions shows that this section was carefully formulated, nor is there any reason why the legislature cannot provide a method of altering existing county lines, either by general law or by special act to be submitted to the people. At the first session of the legislature a general law was enacted providing for a change of county seats. Laws 1858, c. 18; Roos v. State, 6 Minn. 291 (428). That decision was based upon the proposition that the law effecting the change was to be submitted to the people, and not the question as to whether a change should be made.
Gilfillan, Willard & Willard, for respondents.
The evil sought to be corrected by article 11, § 1, of the original constitution was the evil of special legislation as to county lines and county seats, but that evil could not exist under general laws. A general law cannot alter the boundaries of any given county. It can only provide a way in which the people can effect such change if they desire it. The phrase in the constitution "all laws" refers to special laws only. Roos v. State, 6 Minn. 291 (428). The constitutional amendment of 1881 prohibited special legislation changing county seats and that of 1892 special legislation changing county lines. The case of Nichols v. Walter, 37 Minn. 264, 33 N.W. 800, should not now be overruled. If that case is overruled and article 11, § 1, is still in force, there is no power anywhere that can change a county seat or a county line. Under this section they must be changed either by a general law or a special law, and the law must be submitted to the people. But the legislature is prohibited from passing a special law. It is not prohibited from passing a general law, but such law cannot be submitted to the people. Nichols v. Walter was approved in Todd v. Rustad, 43 Minn. 500, 46 N.W. 73. If article 11, § 1, prohibited the passage of general laws, that prohibition has been removed by the amendment of 1881, -- article 4, § 34.
Certain petitions were prepared, and presented to the secretary of state, whereby it was sought, under Laws 1895, c. 298, to detach from the unorganized county of Cass certain territory, and attach the same to the organized county of Crow Wing. The secretary of state and state auditor, two of the members of the commission provided for that purpose by said act, declared said petitions conformable to law; and pursuant thereto the governor issued his proclamation declaring said territory detached from Cass county, and attached to Crow Wing county. This action of these officers was attempted to be reviewed in this court by certiorari, but the writ was quashed. See State v. Clough, 64 Minn. 378, 67 N.W. 202. Thereupon a writ of quo warranto was issued out of this court, on relation of the attorney general, requiring the county commissioners of Crow Wing county to show by what warrant they exercised jurisdiction over said territory. They made a return to the writ, and the matter was brought on for hearing on the matters alleged in the petition and admitted in the return.
1. It is contended by the attorney general that the petitions must show on their face, or have affidavits attached thereto which will show, the number of votes cast at the last preceding general election in the territory in question, and also in the county to which it is to be attached, so that it will appear that 55 per cent. of the voters in such territory have signed the one petition, and 55 per cent. of the voters in such county have signed the other. In our opinion, the point is not well taken. The statute does not require either petition to state the number of votes so cast. It simply provides that whenever petitions are presented, signed by 55 per cent. of such voters, "as shown by the returns of the last preceding general election," the secretary of state shall file them, etc. Section 2. It also specifies a number of things which the petition shall state, but the number of votes cast at such last general election is not one of those things. Undoubtedly the number of votes so cast should be made to appear to the commission, but that may be done by better evidence than mere affidavits or the recitals in the petitions.
2. We are also asked by the attorney general to overrule the case of State v. McFadden, 23 Minn. 40, and to hold that Sp. Laws 1876, c. 208, disorganizing Cass county and attaching it to Crow Wing county, is unconstitutional, for the reasons stated in the dissenting opinion in that case. Of course, this would make Cass an organized, instead of an unorganized, county, and raise other questions as to the legality of the proceedings in question. We cannot reconsider the questions decided in that case. The status of Cass county and the constitutionality of that act were there directly involved. And whether it is placed on the doctrine of res adjudicata, or that of stare decisis, public policy absolutely prohibits the reconsideration of those questions here. To hold otherwise would result in a most intolerable state of things.
3. Laws 1895, c. 298, aforesaid, provides that any organized county may be enlarged by attaching thereto adjoining territory from an unorganized county. The act prescribes the manner of preparing, signing, and verifying the petitions. When the proper petition, so signed and verified by 55 per cent. of the legal voters of such territory, and the proper petition, so signed and verified by 55 per cent. of the legal voters of such county, are presented and filed, the commission aforesaid shall act on the same; and, if "found to conform to law," they shall so certify, and the governor shall issue his proclamation declaring the territory detached from the unorganized county, and attached to the organized county.
It is urged by the attorney general that this act contravenes section 1, art. 11, of the constitution, and is unconstitutional, because it does not provide for submitting the question of the change of the lines of the organized county to a vote of the electors of that county at the next...
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